FIFTH ANNUAL REPORT

TO CONGRESS

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

FEBRUARY 1995
John T. Conway, Chftirman

A.J. Eggenberger. Vice Ch<llrman

John W. Crawford, Jr.

Joseph J, DINunno

HcrbertJohn Cecil t<O\llS

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

625 Indiana Avenue. NW, Suite 700, washingtun, D.C. 20004

(202) 20R·6400

February 16, 1995

To the Congress of the United States:

The Defense Nuclear Facilities Safety Board is pleased to submit to the Congress

its fifth annual report for calendar year 1994. An independent executive branch

establishment, the Board provides advice and recommendations to the President and the

Secretary of Energy regarding public health and safety issues at Department of Energy

(DOE) defense nuclear facilities. The Board also reviews and evaluates the content and

implementation of health and safety standards, as well as other requirements, relating to

the design, construction, operation, and decollunissioning of DOE defense nuclear

facilities.

As required by statute, the Board's report summarizes activities during calcndar

year 1994, assesses improvcments in the safety of DOE defense nuclear facilities, and

identifies remaining safety problems.

Congress directed the Board to include in its fifth arulUal report "an assessment of

the degree to which the overall administration of the Board's activities arc believed to

meet the objectives of Congress in establishing the Board" and the Board's

"recommendations for continuation, termination, or modification of the Board's functions

and programs ...." This report contains the required assessment and reconunendations.

~1!~ Chairman

rJJ-Y~c~~.

John W. Crawford,/!.

Member

(}::""§AI/{J: ~l U"M-r7)

~ePf1'J. ~unno Member

R~~"I@~

AJ. Eggenberger

Vice-Chairman

Herbert J. C. Kouts

Member
Frontispiece

This report has been prepared in two parts. Part I covers Board activities related

to health and safety during 1994. Part 2 is a summary and evaluation of the major

activities of the Board over the past five years. This evaluation is in response to

a special reporting requirement set forth in the Board's enabling legislation. The

detailed portion of this 5th Year Report is preceded by an Executive Summary.
PART 1:

TABLE OF CONTENTS

REPORT TO CONGRESS ON BOARD

ACTIVITIES RELATED TO HEALTH AND

SAFETY DURING 1994

I. PROGRESS ENSURING SAFETY AT DEFENSE

NUCLEAR FACILITIES . 1

A.

B.

INTRODUCTION .

SUMMARY OF 1994 TECHNICAL ACTIVITIES .

1

2

II. MAJOR TECHNICAL ACTIVITIES OF THE BOARD

DURING 1994 . 6

A. HEALTH AND SAFETY MANAGEMENT

OF DEFENSE NUCLEAR FACILITIES 6

B. SAFETY ASPECTS OF THE ASSEMBLY,

DISASSEMBLY, AND TESTING OF

NUCLEAR WEAPONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. SAFELY MANAGING SURPLUS NUCLEAR

MATERIALS AND WASTE 10

1. Safe Disposition of Surplus

Nuclear Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2. Accelerated Waste Characterization

at the Hanford Sites 12

3. Storage of Spent Nuclear Fuel . . . . . . . . . . . . . . . . . . 13

4. Low Level Waste Management 14

D. SAFETY ASPECTS OF CONDUCT

OF OPERATIONS 14

1. Conduct of Operations 14

2. Readiness of Fncilities to Operate. . . . . . . . . . . . . . . . 16

E. SAFETY ASPECTS OF MANAGING THE

DEFENSE NUCLEAR FACILITY SYSTEM

LIFE CYCLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1. Systems Engineering Implementation 18

2. Seismic and Other External Haznrds

Mitigation 19

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3. Criticality Safety. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

4. Safety Analysis of Sitc Operations 21

nr. ADMINISTRATIVE MATTERS 24

A. PERSONNEL RECRUITMENT. . . . . . . . . . . . . . . . . . . . . . 24

B. PUBLIC HEARINGS, PUBLIC COMMENT,

AND INTERACTION WITH BOARD 24

C. OFFICIAL SITE VISITS BY BOARD

MEMBERS AND BY STAFF 25

D. NATIONAL PERFORMANCE REVIEW (NPR)

STREAMLINING INITIATIVES. . . . . . . . . . . . . . . . . . . . . 25

IV. PLANNED FOCUS OF BOARD ACTIVITIES IN 1995 . . . . . . . . . . 30

A.

B.

PART 2:

COMPLEX-WIDE SAFETY ISSUES

REQUIRING PRJORlTY ATTENTION IN 1995 . . . . . . . . . . 31

SITE-SPECIFIC SAFETY ISSUES REQUIRING

PRJORJTY ATTENTION IN 1995 " 31

5TH YEAR REPORT

EXECUTIVE SUMMARY

I. EXECUTIVE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34

A. SPECIAL REQUIREMENTS FOR BOARD'S

FIFTH ANNUAL REPORT TO CONGRESS .... . . . . . . . .. 34

B. BOARD PROCEDURES AND ACTIONS

TAKEN TO MEET THE CONGRESSIONAL

REPORTING REQUIREMENT. . . . . . . . . . . . . . . . . . . . . .. 34

1. Mandatory Reporting Requirements

Rclated to thc Fifth Annual Report 35

2. Rcscarch and Documentary Information

Gathering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35

3. Briefings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35

4. Public Hearings 35

5. Hearings With Secl'etary of Energy

and Selected Expert Witnesses . . . . . . . . . . . . . . . . . .. 36

6. Determination of How Well thc Board

Met Congrcssional Expectations . . . . . . . . . . . . . . . . .. 36

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7, Ovcrsight Options , ,. 37

8. Board Deliberation nnd Prcpuntion

of Final Rcport , , . , , . , , .. 38

C. ASSESSMENT OF HOW WELL THE

BOARD MET CONGRESSIONAL OBJECTIVES 38

1. Ensuring Adequatc PI'otection

Tbrough Effective Usc of Bonrd

Rccommendations , . . . . . . . . . . .. 39

2. Fostcl' the Devclopment and

Implementation of Adequnte DOE

Safcty Standards Including Orders,

Rules, and Otbcl' Requircmcnts .... . . . . . . . . . . . . .. 40

3. Rnise thc Technical Expertisc and

Vigor of DOE Substantially, nnd

Help Dcvelop and Monitor DOE's

Internal EH Organizntion ,........ 41

4. Rcview DOE Snfcty Managemcnt,

Ovcrsight, and Enforccmcnt Programs , , . . . .. 43

5. Revicw Design and Construction

of New Dcfcnse Nuclenl' Facilitics

to Ensure Public Health nnd Safety

Arc Adcquntely Protected ,........ 43

6. Dcterminc Thnt DOE's Response

to Board Recommendations Adequately

Protects Public Healtb nnd Safcty

Beforc Restnrt of Plutonium

Opemtions at Rocky Flats , , , . .. 45

7. Rcstore Public Confidcncc in Safe

Operations of DOE Defense Nuclear Facilities. . . . . . .. 45

D, RECOMMENDATIONS FOR APPROPlUATE

TRANSITION REQUIREMENTS IN THE

EVENT THAT MODIFICATIONS ARE

RECOMMENDED " ,............ 47

E. RECOMMENDATIONS FOR CONTINUATION,

TERMINATION, OR MODIFICATION OF THE

BOARD'S FUNCTIONS AND PROGRAMS. . . . . . . . . . . . .. 47

J. Continuation of Extcrnal

Oversight Function , . . . . .. 47

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2. Enhancing the Board's Effectiveness

Under Current Stntute 48

n. Current Stntutol)' Authority 48

b. Stlltutory Changes Considered . . . . . . . . . . . . .. 49

3. The Need for Formal Regulatory 01'

Liceusing Authority 50

PART 2: 5TH YEAR REPORT

ASSESSMENTS AND RECOMMENDATIONS

II. SETTING THE STAGE: PAST AND PRESENT

SAFETY PROGRAMS FOR DOE DEFENSE

NUCLEAR FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 56

A. OVERVIEW OF DOE'S AND PREDECESSOR

ORGANIZATIONS' NUCLEAR SAFETY AND

OVERSIGHT PROGRAMS. . . . . . . . . . . . . . . . . . . . . . . . .. 56

B. HEALTH AND SAFETY PROBLEMS LEADING

TO THE CREATION OF THE DEFENSE

NUCLEAR FACILITIES SAFETY BOARD. . . . . . . . . . . . .. 57

C. PROBLEMS ADDRESSED BY THE BOARD

DURING ITS FIRST FIVE YEARS OF OPERATION 60

D. CHANGES IN THE DEFENSE NUCLEAR

COMPLEX AND THEIR IMPLICAnONS

FOR SAFETY AND HEALTH AND BOARD

.IURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62

m. ASSESSMENT OF BOARD AND DOE EFFORTS

TO MEET CONGRESSIONAL OBJECTIVES

DURING FIRST FIVE YEARS OF BOARD OPERATION. . . . .. .. 66

A. ENSURING ADEQUATE PROTECTION OF

PUBLIC HEALTH AND SAFETY AT DEFENSE

NUCLEAR FACILITIES THROUGH EFFECTIVE

USE OF BOARD RECOMMENDATIONS ... . . . . . . . . . . .. 66

1. Processes for Identifying Public

Health and Sllfety Issues at Defense

Nuclenr Facilities 67

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2. The Recommendation and Implementation

Plan Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 69

a. Analysis of the Pace of DOE

Implementation for Board

Recommendations . . . . . . . . . . . . . . . . . . . . . .. 69

b. Causes of the Delay: DOE Actions,

Board Actions, Statutory Defect,

or Some Combination of Causes 74

c. Possible Additional Corrective Actions . . . . . . .. 75

B. FOSTER THE DEVELOPMENT AND

IMPLEMENTATION OF ADEQUATE DOE

SAFETY STANDARDS INCLUDING ORDERS,

RULES, AND OTHER REQUIREMENTS 76

1. Progress in Developing and Implementing

a Requirements-Based Safety Program

During 1991-1994 79

2. Current Status 80

C. RAISE THE TECHNICAL EXPERTISE AND

VIGOR OF DOE SUBSTANTIALLY, AND

HELP DEVELOP AND MONITOR DOE'S

INTERNAL ENVIRONMENT, SAFETY AND

HEALTH ORGANIZATION. . . . . . . . . . . . . . . . . . . .. . . .. 82

1. Board Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 82

2. Status of DOE Actions to Date

011 Tcchnical Personnel Issucs 85

D. REVIEW DOE SAFETY MANAGEMENT,

OVERSIGHT, AND ENFORCEMENT

PROGRAMS 89

1. The Primacy of Line Managclllcnt

Responsibility for Safcty 89

2. DOE Oversight of Nuclcar Safety. . . . . . . . . . . . . . . .. 90

3. Lcgal and Organizational Bases for

Oversight and Enforcement . . . . . . . . . . . . . . . . . . . .. 93

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a. Statutory Authority. . . . . . . . . . . . . . . . . . . . .. 94

b. Organizational Issues 95

c. Enforcement Issues . . . . . . . . . . . . . . . . . . . . .. 95

E. REVIEW DESIGN AND CONSTRUCTION

OF NEW DEFENSE NUCLEAR FACILITIES

TO ENSURE PUBLIC HEALTH AND SAFETY

IS ADEQUATELY I'ROTECTED 98

F. DETERMINE THAT DOE'S RESPONSE TO

BOARD RECOMMENDATIONS ADEQUATELY

PROTECTS PUBLIC HEALTH AND SAFETY

BEFORE RESTART OF PLUTONIUM

OPERATIONS AT ROCKY FLATS

ENVIRONMENTAL TECHNOLOGY SITE. . . . . . . . . . . .. 101

G. RESTORE PUBLIC CONFIDENCE IN SAFE

OPERATIONS OF DOE DEFENSE NUCLEAR FACILITIES 101

1. Availability of Documents for Public

Review and Comment . . . . . . . . . . . . . . . . . . . . . . .. 103

2. Board Regulations Promoting Availability

of Information 103

3. On-Site Hearings and Discussions 103

4. Activities Supporting The Fifth

Annual Report 104

.IV. OPTIONS TO STRENGTHEN SAFETY OVERSIGHT

AT DEFENSE NUCLEAR FACILITIES INCLUDING

POSSmLE STATUTORY CHANGES 105

A. ELIMINATION OF EXTERNAL OVERSIGHT. . .. .. . . .. 105

B. MAINTAIN THE CURRENT STRUCTURE,

BUT MAKE BETTER USE OF STATUTORY

TOOLS CURRENTLY AVAILABLE . . . . . . . . . . . . . . . . .. 106

1. Elevating Safety Issues to Highest

Levels Within DOE and Better Utilization

of Public Hearings on Safety Issues 106

2. Increasing Public Involvement in

Board Activities 108

3. Communication With Congress on

Safety Matters 109

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C. NEED FOR STATUTORY CHANGES. . . . . . . . . . . . . . . .. 109

1. Shortening the Period Allowed for DOE

Responses to Boa,'d Recommendations and

for Development of Implementation Plans 109

2. Stnrtllp Approvnl nnd Stop Work Anthority . . . . . . .. 110

3. Safety Stnndards: Bonrd Concurrence

Authority or Assumption of Responsibility

for Establishing Stnndards . . . . . . . . . . . . . . . . . . . .. 111

4. Imposition of Implementation Pl:m

Commitments As Contrnct Terms 11 3

5. Bonrd Authority to Compel DOE nnd

Contractor Action to Implement Bonrd

Recommendntions . . . . . . . . . . . . . . . . . . . . . . . . . .. 114

D. MAJOR REORIENTATIONS OR

MODIFICATIONS IN BOARD STATUTORY

AUTHORIZATION 114

1. Introduction: Determining the Extent

of DOE Self-Regulntion . . . . . . . . . . . . . . . . . . . . . .. 114

2. Ovel'View of the BO'lI'd's Position

on Necd for Full Regulntory or

Licensing Authority 125

3. Advantnges and Disndvantages of

Conferral of Regulatol')' Authority . . . . . . . . . . . . . .. 126

n. Possible Henlth nnd Snrety

Advantages of the Regulntory Option . . . . . . .. 128

b. Countervailing Technical Henlth

and Snfcty Disadvantages of the

Regulatory Option 129

c. Economic (Cost-Benefit) Disadvnntages

Associatcd with Regulntory Option. . . . . . . . .. 130

4. Potential Licensing of Defense Nuclcar

Fncilities and Weapons Activities . . . . . . . . . . . . . . .. 131

APPENDICES

Appendix A: 1994 Recommcndations

Appcndix B: Rcferences

Appendix C: Policy Stntement No. t

Appendix D: DOE Orders

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PART I

REPORT TO CONGRESS ON BOARD ACTIVITIES

RELATED TO HEALTf-l AND SAFETY DURING 1994
l. PROGRESS ENSURING SAFETY AT DEFENSE NUCLEAR FACILITIES

A. INTRODUCTION

For nearly half a century, the Department of Energy (DOE) and its predecessor

agencies operatcd the nation's defense nuclear weapons complex without independent

external oversight. In the late 1980's, it became increasingly clear to members of

Congress that significant public health and safety issues had accumulated at many of the

aging facilities in the weapons complcx. As an outgrowth of these concerns, Congress

created the Defense Nuclear Facilities Safety Board (Board) in 1988 as an indepcndent

oversight organization within the Executivc Branch charged with providing advice and

recommendations to the Secretary of Energy "to ensure adequate protection of public

health and safety" at DOE's defense nuclear facilities. By the Fall of 1989, the initial five

members of the Board had been appointed by the President and confirmed by the Senate

and staff recruitment efforts were underway.

Broadly, the Board is responsible for indcpendent ovcrsight of all actIVIties

impacting nuclear safety within DOE's nuclear weapons complex, which in thc past

served to dcsign, manufacture, test, and maintain nuclear wcapons. The complex is now

engaged in cleanup (principally from radioactive contamination), disassembly of nuclear

weapons as the nation's stockpile of weapons is reduced in size, and maintenance of the

smaller stockpile. There is increased activity in preparing to store fissionable material

[Tom disassembled nuclear weapons, and material that still remains in the production

pipeline, through which flow has been halted.

The Board reviews and analyzes facility and system design, operations, practices

and events, and makes recOlTllnendations to the Secretary of Energy that the Board

believes are necessary to ensure adequate protection of public health and safety. The

Secretary may accept in whole or in part or disapprove the recommendations. The Board

must consider the technical and economic feasibility of implcmenting the recommended

measures, and the Secretary must report to the President and Congress if implcmentation

of a recommcndation is impracticable because of budgetary considerations. If the Board

determines that an imminent or severe threat to public health or safety exists, the Board

is required to transmit its recommendations to the President, as well as to the Secretaries

of Encrgy and Defense.

The Board's enabling statute, 42 U.S.c. § 2286 et seq., requires the Board to

review and evaluate the content and implementation of health and safety standards,

including DOE's Orders, rules, and other safety requirements, relating to the design,

construction, operation, and decommissioning of DOE's defense nuclear facilities. The

Board must then recommend to the Secretary of Energy any specific measures, such as

changes in the content and implementation of those standards, that the Board believes

should be adopted to ensure that the public health and safety are adequately protected.

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The Board al 0 is required to review thc design of new defense nuclear facilities before

construction begins, as well as modifications to older facilities, and to recollUllend changes

neccssary to protect health and safety. Review and advisory responsibilities of the Board

continue throughout the full life cycle of facilities, including shutdown and

decollUnissioning phases.

The Board may conduct investigations, issue subpoenas, hold public hearings,

gather information, conduct studies, establish reporting requirements for DOE, and take

other actions in furtherance of its review of health and safety issues at defensc nuclear

facilities. These ancillary functions of the Board relate to the accomplishment of the

Board's primary function, which is to assist DOE in identifying and correcting health and

safety problems at defense nuclear facilities. The Depaliment of Energy and its

contractors at defense nuclear facilities are required to cooperatc fully with the Board.

The Board is required by statute to report to Congress each year concerning its

oversight activities, its recommendations to the Secretary of Energy, and improvements

in safety achieved at defensc nuclear facilities as a rcsult of its activities. The Board's

Annual Rcport for activities during 1994 is presented in Part I, including new

recommendations issued during the past year and progress made by DOE in implementing

the Board's recommendations from previous years. Part 2 covers the special issues

required by the enabling statute to be addressed in its Fifth AlUlUal Report, including an

assessment of how well the Board has mct Congressional objectives during its first five

years of operation.

B. SUMMARY OF 1994 TECHNICAL ACTIVITIES

During 1994, the Board continued to respond to changes in the mission of DOE's

defense nuclear facilities, placing emphasis on the disassembly of nuclear weapons and

the safe disposition of surplus nuclear components and materials, and the facilitics,

personnel, and infrastructure necessary to do these things. The problem of managing

surplus materials and the associated wastcs that have accumulated from past weapons

production is becoming more acute with the passage of time. Recent incidents involving

bulging waste storage containers, rupturcd drums and contamination of workers and

facilities are likely precursors of potentially more serious situations. The large volumes

of highly radioactive material left in process lines, tanks, vaults, drums, and storage basins

when production facilities were shut down constitute a serious hazard.

The Board identified several areas where the potential for major safety issues exists

and near-term correcti vc action is needed.

• Detailed complex-wide reviews and subsequent analyses revealed significant neartcrm safety risks in the storagc of residual plutonium and spent fuel.

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• An in-depth review of low-level waste storage revealed major deficiencies at a

number of DOE defense nuclear sites. These included a lack of compliance with

DOE standards, practices not comparable to conullercial practices, a lack of

performance assessments, and no requirement to evaluate sites containing waste

disposed of prior to 1988.

• Seismic-structural evaluations by the Board and its outsidc cxperts have shown the

need for examination of the adequacy of DOE's defense nuclear facilities selccted

for long-term missions, e.g., Rocky Flats Building 371 which is to be used for

storage of a large amount of plutonilU11.

• Observation that personnel at the Oak Ridge Y-12 Plant had failed to follow

procedures, establishcd to prevent criticality incidents, led to the discovery of

many violations of safety procedures and overall poor conduct of opcrations. The

Board also informed DOE of inadequacies in design basis information involving

safety systems, in configuration management, and in flow-through of teclUlical

requirements to operational procedures at the Pantex Plant and at Los Alamos

National Laboratory (LANL). In all three cases, operations were suspended

pending correction of the problems.

• The Board has continued to press for the implementation of adequate safety

standards and has detcrmined that implementation may be impaired by delays and

uncertainties in DOE's rulcmaking process.

The Board issued five scts of recommendations during 1994, totaling 43 subrecommendations. In ReconUllendation 94-J, the Board addressed the need to expedite

the stabilization and proper storage ofthousands of kilograms of unstable solid plutonium

residues, corroding spent fuel and highly radioactive liquids at several sites. The Board

reconUllended that DOE establish a progranl to stabilize the hazardous solids and liquids

within a three-year period and expedite effolis to remove and properly store degrading

spent fuel. As an indication of public concern over this issue, the Board responded to

requests for more than 500 copies of a Board technical report, "Plutonium Storagc Safety

at Major Department of Energy Facilities," released April 14, 1994, which describes the

nature and status of many of these materials and discusses standards for stabilizing and

storing plutonium materials. Extensive reviews and continued pressure by thc Board

contributed directly to DOE's decision to develop a comprehensive and accelerated plan

for the removal and long-term storage ofspent nuclear fuel stored in the K Reactor Basins

near the Columbia River.

A Board survey oflow-level waste facilities tlu'oughout the DOE defense complex

has shown that DOE's practices do not meet current standards required of commercial

entities and that no integrated, systematic plan for evaluating and improving these

facilities is being implemented. The lack of an adequate plan to proceed affects directly

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the likelihood ofsafe and effective decommissioning and decontamination throughout the

complex. Therefore, the Board issued Recommendation 94-2, mging DOE to: completc

a comprehensive, complex-wide review ofthc low-level waste issue; take immediate steps

to complete pcrformance assessments; and develop an action plan wherever noncompliance with DOE's dose criteria is found.

A number of seismic-structural reviews throughout thc complex have led to

questions as to public health and safety at facilities which may be subjected to severe

external forces from earthquakes, extrcme winds, and floods. In particular, an assessment

and assurance of adequate protection of public health and safety are needed for Building

371 at Rocky Flats, which is planned for the long-term storage of large quantities of

plutonium. Recommendation 94-3 requires that a systems engineering methodology be

used to formulate an integrated program plan that would address the civil-structuralseismic safety issues and cvaluations related to the planned use of Building 371. This is

required to be able to specify safety upgrades and improvements to Building 371

consistent with its mission.

In September 1994, during routine site reviews, several violations of nuclear

criticality safety limits in storage vaults were obscrved at thc Oak Ridgc Y-12 Plant.

Additional reviews and sclf-assessments by the DOE and contractor personnel resulted in

a finding of major deficiencics in conduct of operations and a curtailment of Y-12

activities. The apparent breakdown of administrative controls, along with observation of

other conduct of operations problems, were key factors leading the Board to issue

Recommendation 94-4. The Board asked that DOE determine any immediate actions

necessary to resolve nuclear criticality safety deficiencies at the Y-12 Plant. The Board

also asked that DOE fully evaluate compliance with Operational Safety Requirements

(OSRs) and Criticality Safety Approvals (CSAs), detcrmine root causes of identified

violations, review the nuclear criticality safety program, and establish actions to resolve

thc nuclear criticality deficiencies at Y-12. The Board also urged DOE to compare the

level of conduct of operations at Y-12 to the level expected by DOE in implementing the

Board's Recommendation 92-5 (conduct of operations).

Tlu'oughout site visits in 1994, the Board saw evidence of a slowdown in order

compliance, e.g., implementation of the Radiation Control Manual. In addition, several

memoranda issued by DOE managers have indicated a tendency to accept delays in

compliance with safety related orders pending issuance of rules or plans to implement

rules already issued, despite earlier high-lcvel assurances that such relaxation would not

be permitted. Given this situation, the Board issued Reconunendation 94-5 requiring the

DOE to take strong actions to ensure there is no relaxation of commitments made to

achieve compliance with existing requirements in safety orders while proposed rules are

being developed.

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The Board also recommcnded that DOE ensure that compliance with the minimal

(baselinc) set ofsafety requirements contained in Rules is not construed as full compliance

with all ncccssary safety requirements and does not displace effort to develop and

implement through Requirements Identification Documents (RIDs) the best nuclear safety

requirements and practices embodied in rules, orders, standards, and other safety

directives.

In addition, the Board asked DOE to clearly cstablish line, oversight, and legal

responsibilities for review and approval of contractual provisions specifying environment,

health and safety requirements for DOE's contractors at defense nuclear facilities. Doing

so would help to cnsure that the requirements-based safety management program

established by the Department will be uniformly dcveloped and consistently imposed

across the complex.

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II. MAJOR TECHNICAL ACTIVITIES OF THE BOARD DURING 1994

A. HEALTH AND SAFETY MANAGEMENT OF DEFENSE NUCLEAR

.FACILITIES

A significant result of the last major reorganization of the Department of Energy

in 1993 was that the roles and responsibilities of the offices involved in nuclear safety

were not clearly delineated. In May 1994, the Board imposed a reporting requirement on

DOE (pursuant to 42 U.S.C. 2286b(d)) requiring the Department to providc a "brief

summary description of the basic safety managemcnt system that DOE currently has in

place for satisfying its responsibilities under the Atomic Energy Act 'to protect or to

minimize danger to life and properly.'" The Board requested DOE to describe how

safety is considered throughout the life cycle of defense nuclear facilities, including the

major stages of design, construction, operation, and decommissioning. DOE was also

requested to clearly define the nuclear safety responsibilities of the various line and

internal oversight organizational elements.

In its October 1994 response, DOE described the objcctives, tasks, and safety

considerations for cach phase of the system life cycle, as well as thc general transition,

interface, and information flow requirements among the phases. The response provides

a systems-oriented framework for DOE to examine its safety management program

critically. Additionally, the Department revised its Manual ofFunctions, Assigmuents and

Responsibilities. The Board views these steps as positive measures toward strengthening

the Department's safety management program, and is now assessing the effectiveness with

which this manual has been implemented by headquarters and field organizations.

In response to budgetary restrictions, the Secretary aJUl0unced a plan in December

1994 to review the structure of the Department. This effort, to be performed by both

DOE employees and independent experts, should afford a valuable 0ppOitunity to address

systematically the subject of health and safety responsibilities of individuals and

organizations within the Dcpartment. Because ofthe clear opportunity for the Departmcnt

to improve its health and safcty management, the Board intends to monitor this effort

during 1995.

B. SAFETY ASPECTS OF THE ASSEMBLY, DISASSEMBLY, AND

TESTING OF NUCLEAR WEAPONS

DOE is responsible for maintenance and support of the activc nuclear weapons

stockpile, retaining the capability to resumc nuclear testing (in accordance with

Presidential direction), dismantlement of nuclear weapons, and associated research and

development. The nature of DOE's weapons mission in these areas has changed from its

fornler thrust toward design, production and testing to an emphasis on dismantlement,

stockpile maintenancc, decommissioning, and safc storage. DOE has defined its

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adjustments to these changcs in two program initiatives: (I) Stockpilc Managemcnt,

which deals with the rctention of capability to maintain the systems in the U.S. nuclear

weapons stockpile; and (2) Stockpile Stewardship, which deals with retention and

development of thc teclmological tools necessary to maintain confidence in the safety,

reliability, and performance of U.S. nuclear weapons and their associated components.

The thrust of these initiatives is to move toward a smaller, but fully capable nuclear

weapons complex.

DOE's efforts to adapt the nuclear weapons complex to reflect changes in the U.S.

national security posture have resulted in new areas needing safety attention. The Board

has taken action on four fronts to help ensure that such changes do not degrade nuclear

safety. Thcse four areas of primary focus in 1994 wcre: (I) the adequacy of technical

staffing, (2) thc evaluation of facility and process readiness, (3) the conduct of ongoing

operations, and (4) ensuring that the safety of operations is standards-based.

Adcquacy of Technical Staffing: The Board continues to note the closc

relationship between the recruitment, training, and retention of well-qualified persormel

and nuclear safety. This issue is an especially crucial one in a "downsizing" environment.

The continued need for technically competent persormel in the weapons complex was

addrcssed by the Board in its 1993 Recommendation 93-6; Recommendation 93-3

addressed this issue DOE-wide.

Thc Board issued Reconunendation 93-6 to higWight the need to retain access to

and capture the unique knowledge of individuals who have been engaged for many years

in assembly, disassembly, and testing of nuclear weapons, so as to avoid future safety

problems. The Board noted that many individuals are being lost from the defense nuclear

system, due to retirement incentives, layoffs, and other downsizing activities, and that

these individuals possess information that is not presently documented. Retention of this

information is essential if DOE is to maintain the capability to safely manage and

maintain the weapons stockpile, and conduct dismantlement activities.

The Secretary accepted Recommendation 93-6 in February 1994, stating that the

Department shared the Board's concern abont ensuring capability to conduct nuclear

weapons testing operations and dismantle nuclear weapons safely. In May J994, the

Secrctary notified the Board that 45 additional days were needed to develop an integrated

and effective approach. In its response to the Secretary, the Board stressed that some

aspects of the recommcndation have a high degrce of urgency, emphasizing that

impending early retirenlent of weapons experts in DOE and the National Laboratories

would exacerbate an already inadequate staffing situation. The Board noted that teclmical

competence in DOE's defense activities was already below a level necessary for continued

safety, and urged an aggressive approach to supplement the Defense Programs

organization with additional, technically competent personnel.

- 7 -
In July 1994, the Department submitted an Implementation Plan generally

acceptable to the Board. A specific elelllent of the plan committed to an immediate

review ofstaffing ofspecil'ic organizational elements of DOE's weapons complex and the

need for additional, technically qualified personnel. Unfortunately, the initial efforts to

assess staffing were unsatisfactory_ In September 1994, the Board wrote to the

Department, stating that the initial report did "not address either of the explicit

requirements ofthe commitment (i. e., the status ofcurrent staffing and recommendations

for additional stafJ)_" However, discussions between the Board and the Secretary led to

a commitment by DOE in late 1994 to: (1) allow the Headquarters staff to be

supplcmented immediately with ten additional persorll1el for nuclear safety-rclated

activitics; (2) conduct a comprehensive teclmical staffing review to identify where

technical resources were lacking; and (3) determine how to focus additional resourccs.

In gencral, DOE's progress on meeting the cOlllmitments in its implementation

plan for Recommendation 93-6 has been limited, due in part to the staffing inadequacies

highlighted by the Board_ In its September letter, the Board informed DOE of a number

of deficiencics. As a result of the Board's letter, DOE assigncd senior DOE managers to

better coordinate implementation of Rccommendation 93-6. Thcir efforts did result in

some additional progress, but at year-end, implementation of Recommendation 93-6 was

still substantially behind schedule.

The potential safety impact of a delay 11l meeting thc objectives of

Recommendation 93-6 is significant.

During 1994, the Board also made inquiries as to the availability of technically

qualified former military personnel to perform duties within the weapons complex. Tllis

topic was the subject of a meeting between members of the Board and the Deputy

Secretary of Defcnse in Jul y 1994_ At that meeting, the members also spccifically

addressed thc importance of assigning a senior military officer to thc position of DOE

Deputy Assistant Secretary for Military Applications and Stockpile Support (DASMASS)

for a pcriod longcr than the customary two-year tour. That officcr should be a teclmically

competent manager with a background in nuclear weapons and/or nuclear facilities. They

also addressed the need for the Department of Defense to continue its attention to the

selection of highly qualified individuals of sufficient stature and commitment to critical

positions as an essential element in ensuring the continuing safety of the defense nuclear

complex.

Evaluation of facility and process readiness: Thc readiness of facilities in the

weapons complex to operate safely was a topic of signif1cant Board attention t1u-oughout

1994. Particular emphasis was placed on conduct of appropriate readiness reviews. For

specific weapon assembly and disassembly operations, the Nuclear Explosive Safety Study

(NESS) along with the Qualification Evaluation (QE) processes are utilized to

indcpendently assess readiness.

- 8 -
In December 1993, the Board called for an independent review of the NESS

process. Subsequently, a rcview of the NESS process was conducted by an independent

team composed of nuclear safety professionals from the Department of Defense and the

DOE National Weapon Laboratories. Complction of this review in May 1994 led to the

development of a NESS Corrective Action Plan, which addressed program deficiencies,

a number of which were taken carc of by DOE immediatcly by issuing interim guidance

instructions. The remaining corrective actions are being integrated with the

implementation of an earlier Recommcndation 93-1 1

, and are scheduled for completion

by June 1995.

Throughout 1994, the Board exercised oversight of the majority of NESSs

performed by DOE for opcrations at the Pantex Plant and at the Nevada Test Site.

Oversight rcviews werc focused on the adequacy ofinterim guidance issued by DOE, and

on field compliance with the guidance and with the requircments of DOE Order 5610.11

(which addresses nuclear explosive safety).

Guidance for readiness rcviews of weapons operations was developed by DOE in

response to Recommendation 92-6. The guidance calls for a Qualification Evaluation

(QE) to be performed aftcr certification of rcadiness by contractor and DOE line

managemcnt. The QE, performed by a team of National Weapon Laboratory personnel,

assesses the adcquacy and correctness of the procedures for weapon assembly or

disassembly, and verifies that safety considerations have been addressed. The Board

provided DOE with suggested improvements to DOE's guidance paper, and at year-end,

DOE was in the process of responding to the Board's commcnts.

The Board observed and reviewed implementation ofthe QE process at the Pantex

Plant. On-going efforts to implement the process resulted in the identification of

improvements required by both the DOE Amarillo Area Office and thc DOE Albuquerque

Operations Office. The lessons learned from reviews performed in 1994 are to be uscd

by DOE to upgrade future Q s.

Recommendation 93-6 called for maintammg safety-related nuclear testing

expertise to ensure that if testing is requircd in the future, it can be resumed safely. In

support of this effort, and in response to Recommendation 92-6, DOE developed a Test

Readiness Assessment (TRA) program. DOE uscs full-scalc exercises as a primary means

to achieve test readiness. The Board provided several observations on the conduct of

testing exercises where the intent of Recommendation 93-6 was not being met, and DOE

conilllitted to strengthen the cxercise program in the areas identified by the Board.

Recommendation 93-1 addressed the need for consistency between safety standards

applied to facilities involved with design, production, or testing of nuclear

explosives and those applied to other DOE nuclear facilities.

- 9 -
Conduct of Ongoing Operations: Detailed review of the ongoing operations at

facilities in the weapons complex received high priority in 1994. These reviews included,

for example, standards-bascd evaluations of: conduct of operations, radiological controls,

operational safety, maintenance ofsafety-related systems, and quality assurance. One such

review performed at the Y-12 Plant in Oak Ridge disclosed systemic problems with

criticality safety and conduct of operations; these were addressed by thc Board in

Recommendation 94-4. These problems are discussed in detail in Section I.E.I. At the

Pantex Plant, the Board continued to monitor DOE's progress in implementing a

satisfactory level of conduct of operations, pursuant to its corrective action plan issued in

response to the Board's November 1993 reporting requirement.

Standards-based Operations: During 1994, DOE completed its analysis of thc

differences betwecn the safety requirements applicable to nuclear explosives facilities and

those which are applicable to other defensc nuclear facilities, as called for in the

Department's Implemcntation Plan for Recommendation 93-1. This analysis, coupled

with the analysis callcd for in a Dccember 1993 Board letter regarding the Nuclear

Explosive Safety Study (NESS), led DOE to conclude that the guidance and requirements

contained in its 5610 series of orders (on Nuclear Explosive Safety) Deeded improvement.

The Department developed a plan to improvc the requirements applicable to

nuclear explosive facilities, which were set forth in orders and the NESS program. DOE

also committcd to developing an action plan for upgrading and expediting order

compliance self-assessments at facilities that assemble, disassemble and test nuclear

weapons.

Progress in achieving these improvements in order compliance self-assessment has

been inconsistent, with some facilities showing substantial improvements (e.g., Los

Alamos National Laboratory) and others lagging behind (e.g., Lawrence Livermore

National Laboratory and the Nevada Test Site). On the other hand, the Board was

encouraged by DOE's commitment to extend the applicability of selected safety orders

and to enhance the set of DOE standards.

C. SAFELY MANAGING SURPLUS NUCLEAR MATERIALS AND

WASTES

1. Safe Disposition of Surplus Nuclear Materials

Recommendation 94-1, issued in May 1994, called for an acceleratcd schedule for

stabilizing and rcpackaging lillstable special nuclear materials and spent fuel. DOE's

Plutonium Vulnerability Study, a detailed and wide-ranging evaluation of the safety of

plutonium stored in DOE facilities, reached conclusions similar to those reached by the

Board. However, the Board has concludcd that the risks posed by those materials are

more serious than appears to be recognized by DOE, and that DOE's schedules for

- 10 -
stabilizing and repackaging need to be accelerated in the interests of worker and public

safety. Reconunendation 94-1 speciJ'ically called on DOE to:

•

•

•

•

•

•

•

•

bring stored plutonium metal and oxide at all sites into conformance with

the DOE plutonium storage standard within approximately eight years;

process the plutonium and trans-plutonium solutions in the Savannah River

Site's F-Canyon within 2-3 years into forms safer for interim storage;

repackage plutonium metal in contact with plastic at all sites within 2-3

years;

process possibly unstable plutonium residues at Rocky Flats within 2-3

years into forms suitable for interim storage;

proccss deteriorating irradiated fuel at the Savannah River Site within 2-3

years into forms suitable for interim storage;

place dcteriorating irradiated fuel from the K-Basins at the Hanford Site

in a stable configuration within 2-3 years;

establish a research program to help choose among candidate processes for

conversion to interim forms and longer-term disposition; and

maintain facilities that may be needed for future handling and treatment of

such materials.

The Department's initial Implementation Plan, submitted in December 1994, was

not acceptablc to the Board. DOE agreed in general terms with the Board's objectives

but declined to conU11it itself to the recollU11endation's timetable for taking specific

actions. Meanwhile, the Board's sense of urgency was reinforced by further developments

after the recOllllllendation was issued.

As postulated by the Board, high conccntrations of hydrogen gas havc been found

in the headspace of drums containing plutonium residues at Rocky Flats. Radiography

of thesc drums during 1994 showed that the residucs were contained in plastic bottles,

rather than in sealed stainless steel cans, as callcd for by good practice. The Board has

concluded that substantially incrcased action is required to implement Recommendation

94-1.

Recommendation 94-1 recommended that storage of all plutonium metal and oxide

conform to the then-draft DOE plutonium storage standard. DOE subsequently issued the

standard (in Deccmber 1994) requiring that plutonium oxide be thermally stabilized before

- 11 -
packaging for storage, and that containers used to store plutonium metal or oxide be

sealed, structurally adequate, corrosion-resistant, and free of organic materials. This will

require repackaging thousands of items stored at Rocky Flats, the Los Alamos and

Lawrcnce Livermorc National Laboratories, the Hartford Site, and the Savannah River

Site.

DOE has identified several sites where it is known or suspccted that plutoniwl1

metal is in contact with plastic, creating the potential for producing radiolytic hydrogen.

Thesc sites include Rocky Flats (approximately 250 items), the Savannah River Site (12

containers), and the Mound Site (number of items not known). Currently, thirteen of the

plutonium items that were originally packaged in contact with plastic at Rocky Flats have

been repackaged.

DOE has proposed processing the plutonium solutions remaining in F-Canyon

systems at the Savannah River Site to metallic form within two years. It is planned that

the trans-plutonium solutions will be vitrified in F-Canyon within the next five years, but

the Board is concerned that continued storage of this highly radioactive material in a

liquid form poses potential risks to the public. The Board is working with DOE to

explore alternatives that would lead to this material being stabilized sooner. In addition,

DOE is developing plans to stabilize the remaining uranium, neptuniwn, and plutonium

solutions being stored in I-I-Canyon and F-Canyon. The Board will continue to monitor

these plans to ensure that these materials are stabilized safely and in a timely maImer.

In January 1995, DOE formally withdrew the Implementation Plan for

Recommendation 94-1, in response to the Board's dissatisfaction. A revised Plan is

scheduled to be delivered to the Board in February 1995. The Board expects that DOE

will make firm conullitments for an aggressive schedule to accomplish the stabilization

called for in Recommendation 94-1.

2. Acceleratcd Waste Cba..acterization at the Hanfol'd Site

The Board continues to urge DOE to accelerate the pace of the program for

characterizing and processing the contents of high level nuclear waste tanks at the Hanford

Site. In its 1990 Recommendation 90-7, the Board stated that the schedule for

characterizing tanks containing ferrocyanide compounds needed to be greatly accelerated.

Its Recommendation 93-5 expanded upon Recommendation 90-7, stating that DOE should

complete all safety-related characterization of high-level waste tanks at the Hanford Site

within three years, with the characterization of the high priority tanks being completed

in the first two years. Recommendation 93-5 also called for the characterization program

to be integrated into the systems engineering program for the Tank Waste Remediation

System at the Hanford Site to ensure the data necessary to select treatment and

immobilization methods will be available when needed. The Secretary of Energy

- 12 -
accepted these recommendations. The Implementation Plan for Rccommendation 93-5

was acceptcd by the Board in March 1994.

Sampling and analysis of the contents of high-level waste tanks are far behind

schedule. Thc schedule problems involve both the characterization stratcgy and its

subsequent execution. DOE has not been able to develop a technically defensiblc strategy

for efficicntly characterizing thc high-level waste tanks. Mechanical problems and poor

sample recovery have plagued the contractor's core sampling equipment. The contractor

is operating to a schedule that will not complete safety-related characterization of watch

list tanks until two ycars after the Implemcntation Plan commitment, and the remaining

tanks one year later than committed. DOE is analyzing the situation to see if the goals

of Recommendation 93-5 can be achieved with substantially less sampling and analysis.

Thus far, no technically sound plan of action has emcrged, and DOE has not convinced

the Board that it can meet the goals of Recommendation 93-5.

3. Storage of Spent Nuclear Fuel

During 1994, the Board continued its 1993 activities in review of storagc ofspent

nuclear fuel storage at the Idaho National Engineering Laboratory (INEL), the SavaJUlah

River Site, and the Hanford Site.

In the past year, 189 fuel containers were successfully moved from an old,

structurally unstable location to a newer aJld more structurally competent storage basin at

the Idaho Chemical Processing Plant. The Board considers tllese and other actions being

taken to manage vulnerabilities at INEL to be a DOE safety improvement.

The K-East Basin at the Hanford Site contains more than a thousand tons of

deteriorating, irradiatcd nuclear fuel. The fuel is substantially corroded and the basin is

heavily contaminated. These degradcd conditions result in increased waste generation,

higher personnel exposure, and greater difficulty in the handling, storage and disposal of

the fuel. The K-East Basin has leaked on several occasions, and is likely to leak again.

In addition, analysis shows that in a severe seismic event, the basin may not remain intact.

Contaminated water released from the basin could migrate to the nearby Columbia Rivcr.

As part of its Recommendation 94-1, the Board called for the deteriorating fuel

in thc Hanford Site's K-East Basin and fuel storage basins at the SavaJUlah River Site to

be placed in a stable configuration for interim storagc within two to three years. DOE's

current planning calls for packaging the K-East Basin fuel and tile associated fission

product sludge, and removing it from the basin by 1999. Defense-related fuel in the

Savannah River Site basins is scheduled for processing by 2004, with the bulk ofthe most

deterioratcd fuel being processed by 1997. DOE is currently re-evaluating its

commitments under Recommendation 94-1, in an effort to improve these schedules.

- 13 -
4. Low Level Wnste Manngement

In September 1994, as part of its Recommendation 94-2, the Board recommended

that DOE complete a complex-wide review of the low-level waste issue, with the

objectives of establishing the dimensions of the low-level waste problem and identifying

necessary corrective actions to bring operations into compliance with applicable safety

standards. In preparation for the substantial increase in low-level waste projected from

cleanup programs, the Board recommcnded that DOE's Implementation Plan include a

program for forecasting future burial needs. The Board urged that more immediate steps

be taken to complete performance assessments for all active low-level waste burial sites,

as required by DOE Order 5820.2A. The Board also recommended that DOE issuc

instructions to ensure that performance assessments are based on total inventories of lowlevel waste (past, present, and future) emplaced or plalllled for a burial site and that

performance objectives be achieved for the composite of all low-level waste disposal

facilities on the site.

The Secretary of Energy accepted Recommendation 94-2 in October 1994 and

committed to undertake a complex-wide baseline assessment of DOE's low-level

radioactive wastc disposal rcquirements and practices. The Department also recognized

the importance of assessing cumulative impacts to thc public health and safety due to total

waste inventories and all low-level waste disposal facilities on a site. At year-end, DOE

was in the process of developing its Implementation Plan.

D. SAFETY ASPECTS OF CONDUCT OF OPERATIONS

1. Conduct of Openltions

DOE's requirements regarding conduct of operations at its facilities are set forth

in DO Safety Order 5480.19, which establishes the expectation that operational formality

at defense nuclear facilities be on a par with that used by the commercial nuclear industry.

In June 1994, as part of DOE's annual report for Recommcndation 92-5, the Departmcnt

provided a brief description of the operational status and plans for future use of facilities

in the defense nuclear complex.

The report did not present significant new initiatives regarding requirements for

conduct of operations. Recent reportable occurrences and observations made during site

visits by the Board's staff members, and DOE's August 1994 report of its review of

conduct of operations, indicate slow and uneven progres in implementing Departmental

requirements. The status of implementation of DOE 5480.19 as stated in thc June 1994

report, is too optimistic since significant deficiencies exist in the implementation of this

order throughout the complex, more than four years after its issuance.

- 14 -
An example of deficient conduct of opcrations practices is provided by recent

observations at the Y-12 Plant in Oak Ridgc. Although DOE and the operating contractor

at the Y-12 Plant at the Oak Ridge Site have made some improvements in conduct of

operations over thc past two years, several violations of Opcrational Safety Requirements

(OSRs) and Compliancc Schedule Agreements (CSAs) during 1994 indicated an

unsatisfactory level of conduct of operations.

In September 1994, during a routine site review, members of the Board's staff

observed several violations of nuclear criticality safety limits in Y-12 storage vaults and

brought these violations to the attention of contractor management and thc DOE Facility

Representative. Neither the DOE nor contractor pcrsonnel present took the actions

required by the applicable criticality safety procedure. Proper actions were taken only

after members of the Board's staff notified the DOE Y-12 Site Orticc Manager. As a

result of these violations, contractor management curtailed Y-12 activities and began a

comprehensive site-wide review of compliance with all CSAs. That revicw identificd

more than 1300 CSA noncompliances. Contractor management subsequently shut down

all operations at Y-12 pending correction.

This apparent breakdown of administrative controls and othcr conduct of

operations problems at Y-I2 werc key factors leading the Board to issue Reconunendation

94-4,2 calling for DOE to fully evaluate compliance with OSRs and CSAs, determine root

causes of identified violations, review the nuclear criticality safety program, and establish

actions to resolve the nuclear criticality deficiencies at Y-12. The Board also urgcd DOE

to compare the level of conduct of operations at Y-I2 to the level expected by DOE in

implementing the Board's Recommendation 92-5.

DOE accepted Reconunendation 94-4 in mid-November, and is developing an

implementation plan in parallcl with improving criticality safety, conduct of operations,

and other administrative safety programs before resuming Y-12 operations. During 1995,

the Board intends to monitor DOE's efforts to resume operations at Y-12.

On the other hand, some notable examples exist where the right mix of

management attcntion, rcsources, and starting expertise has been brought together to

implement an effective conduct of operations program. Examples include the startup of

the Replacement Tritium Facility and thc restart ofF-Canyon, both at the Savannah River

Site; and the restart of Building 559 at Rocky Flats. At these facilities, line managers

were personally committed to the program and involved in finding and correcting

problems, and communicated their strong support and expectations to subordinates.

Sufficient numbers of experienced operations personnel were assigned to the facilities, and

2 See Appendix A.

- 15 -
DOE field organizations were staffed with knowledgeable managers and facility

representatives who were committed to enforcing the correct standards.

2. Readiness of Facilities to Operate

In response to Recommendation 92-6, DOE issued a new order, DOE Order

5480.31, in September 1993, establishing requirements for starting or resuming operations

and the readiness review process. An associated standard, DOE-STD-3006-93, which was

issued in April 1994, provides detailed guidance for plarUling and conducting readiness

reviews at defense nuclear facilities, other than those involved in nuclear explosives

activities. The issuance of these requirements and standards is a positive action toward

assuring nuclear safety throughout the operating complex.

The Board has monitored implementation of the new order across the complex.

Some examples of the results of the Board's oversight appear below.

• In early 1994, the Board reviewed preparations for increased storage of pits in

Zone 4 at the Pantex Plant, finding, among other things, that DOE and contractor

line management had not achieved an adequate state of readiness before

conducting an Operational Readiness Review (ORR) for pit storage, according to

the requirements of DOE Order 5480.31. The premature ORR revealed practices

needing improvement. Thus, contrary to the original intent, the ORR team

functioned as an adjunct to line management, rather than as an independent check

of readiness.

• This practice, which effectively nullitIes the safety benefits of an independent

check, was observed in a number of other cases. The Board raised this issuc in

a letter to the Department in April 1994. In August 1994, DOE responded by

committing to provide further training to line management personnel on the

readiness review process and to revising DOE Order 5480.31 to more clearly

define actions in certifying readiness to operate.

• At Rocky Flats, DOE completed an Environmental Assessment for limited use of

Building 707 to stabilize plutonium-bearing residues, and found no significant

environmental impact. Although an ORR had been completed more than two and

a half years earlier, DOE decided a reassessment was warranted. In July 1994,

DOE completed lhat additional ORR for limited operations in Building 707. The

Board reviewed the preparations for renewed calcining operations and based on

its staffs report, concluded that the ORR was conducted satisfactorily, and so

informed DOE in August 1994. DOE authorized resumption of the limited

operations in Building 707 in December 1994.

- 16 -
• At the Idaho National Engineering Laboratory, the Board and its staff monitored

preparations to restart the de-nitrator process at the Idaho Chemical Processing

Plant. In June 1994, DOE completed an ORR. The Board found that preparations

by line management and conduct of the ORR adequately demonstrated readiness

to restart operations.

• The Board also monitored the process of establishing readiness to resume

operation at various facilities at the Savannah River Site, including the F-Canyon,

FB-Line, and the In-Tank Precipitation facilities. Preparations for restart of both

F-Canyon and FB-Line in 1994 included ORRs conducted by DOE Headquarters,

which identified several issues requiring resolution before restart.

• As previously stated, the Oak Ridge Y-J2 Plant managemcnt had shut down most

nuclear operations in late 1994 because of numerous noncompliances with safety

rcquirements. During this hiatus, DOE chose to conduct a number of important

nuclear operations at Y-12, including support for inspections by the International

Atomic Energy Agency, receipt of highly enriched uranium from Kazakhstan (the

SAPPHIRE project), and receipt of certain components of nuclear wcapons

disassembled at the Pantex Plant. In each of these cases, the Y-12 contractor

prepared a special activity package describing the additional controls and actions

that would be taken to ensure safety of these high priority activities during the

shut-down period. The Board evaluated the review and approval process and

subsequently revicwed the proposed operations. In each case, the Board saw no

undue risk to health and safety of the public or workers.

• In early 1994, the Board reviewed the readiness of the LANL TA-55 Plutonium

Facility to procecd with production of plutonium oxide pellets in support of

NASA's Cassini Mission to Saturn. LANL and DOE did not conduct full

operational readiness reviews prior to restart. They relied on what they believcd

to be adequate expericnce ofthe operators from previous campaigns for fabrication

ofsimilar p !lets. Howcver, to revicw whether the higher throughput rate rcquired

for Cassini posed a significant risk, the Board held two public meetings in March

1994. Subsequently, in reviewing compliance with procedures and safety limits,

LANL management suspended production operations for two and a half months

to make operational improvements. Production operations began again in latc July

1994.

- 17 -
E. SAFETY ASPECTS OF MANAGING THE DEFENSE NUCLEAR

FACILITY SYSTEM LIFE CYCLE

1. Systcms Enginccring Implcmentation

The Board has become increasingly awarc that DOE does not treat interacting

operations at individual sites or combinations of sites as a system whose components

mutually affect each other. This point is commonly overlooked in planning of facilities,

operations, and programs, and more often that not leads to unworkable results. A

systems-based process attempts to optimize the solution of a complex problem by breaking

the problem into component parts and then engineering component parts in the context

of the whole. For cxample, prcparation of the high Icvel waste in the tanks at the

Hanford Site for geologic disposal will require charactcrization, pre-treatment,

vitrification, and packaging. Engineering the solutions for these complementary functions

must bc done in the context of the systcm objective; namely a stabilized wastc form

suitable for disposal.

During 1994, the Board reviewed systems engineering activities at several facilities

including: the control of safety bases for operations at the Pantex Plant; improvcments

to be madc in the OSR surveillance process at the TA-55 facility at LANL; and the

remediation of high level waste at the Hanford and Savannah River Sites and at the Idaho

National Engineering Laboratory (lNEL). Systems engineering activities related to the

disposition ofspecial nuclear material and spent nuclear fuel at the Hanford Site, INEL,

the SavalUlah River Site, and Rocky Flats were also reviewed by the Board in the past

year. To date, reviews have shown that these various DOE activities have been largcly

unsatisfactory. In general, the Board has noted that DOE has not consistently taken a

formalized systems approach to solving safety, technical, and managerial problems.

A complex-wide DOE standard that formalizes the method would help. The need

for better guidance on systems enginecring was apparent during a number of the Board's

reviews in 1994. Several examples are provided below.

On two occasions, in April and May, the Board informed DOE of

what it considered to be inadequacies in design basis information involving

systems serving safety functions, configuration managcment, and flowthrough of techn.ical requ.ircments to operational procedures at the Pantcx

Plant and at LANL. Subsequently, DOE elected to curtail operations at the

Pantex Plant and at LANL's TA-55 facility for extended periods.

As part of the Tank Waste Remediation System (TWRS) at the

I-Ianford Site, DOE alUlounced its intention to build additional one-million

gallon, double-shell tanks as major elements of the Multi-functional Waste

Tank Facility (MWTF). The Board's review of the process of design of

- 18 -
these tanks, both in the managerial and technical areas, resulted in the

issuance of Reconunendation 92-43 calling for a systems engineering

approach to the design, construction, operation, and eventual

decommissioning of the MWTF. DOE has made some progress toward use

of systems engineering for project development within the TWRS.

However, at the end of 1994, it was still not being fully used by DOE. It

was not used to decide whether new tanks are really needed, how many

there should be, and how large they should be.

The use ofsystems engineering by DOE's Office of Spent Nuclear

Fuel (EM-37) has evolved from a series ofDOE-sponsored workshops, site

meetings and site activities during 1994. This has resulted in the

development of functional requirements at a high enough level to ensure

some consistency across the defense nuclear complex. However, during

a recent visit to the Savannah River Site, it was observed that both ongoing

and planned contractor projects supporting the storage and processing of

spent fuel arc not linked to the Spent Nuclear Fucl Systems Engineering

Program. The situation resembles that with the TWRS described above.

There seem to be no near-term plans to integrate the Spent Nuclear Fuel

Systems Engineering Program with current spent nuclear fuel projects in

the field.

Failure to use a systems approach in planning can lead to greatly increased cost,

delays, inferior solutions to problems, and even inability to solve some problems. The

Board will continue to emphasize the need for a systems engineering approach in these

and other projects in the complex.

As part of its efforts to streamline project development, DOE is revising DOE

Order 4700.1, dealing with systems management. The Board has reviewed initial drafts

of the revised order and has provided its comments to DOE regarding needed

improvements to address the problems noted above. All these activities are ongoing and

have had or will have significant impact on operations or deconuuis 'ioning of numerous

DOE facilities.

2. Seismic and Other External HazardS Mitigation

During 1994, the Board's review of seismic hazards focused on the design

adequacy of key facilities in DOE's nuclear materials storage and waste management.

Reviews continued of the design basis adequacy of the In-Tank Precipitation Facility

(lTP), the H-Area Waste Tank Farms, and the Defense Waste Processing Facility (DWPF)

3 See Appendix A.

- J9 -
at the Savannah River Sitc; the Tank Waste Remediation System at the Hanford Site; the

spent fuel storagc basins at the Idaho Chemical Processing Plant; and Building 371 at

Rocky Flats. The adequacy of the Chemistry and Metallurgy Research Laboratory

(TA-3) and the Plutonium Facility (TA-55) at Los Alamos National Laboratory were also

reviewed, and a November 1994 letter was accordingly sent to DOE rcquesting a report

concerning design practices at LANL.

Based on its revicw of the seismic aspects of DOE's efforts to consolidate the

large inventory of plutonium and highly enriched uranium at Rocky Flats into a single

building, the Board concluded that DOE's ongoing activities to beller identify and

respond to potcntial hazards from nahlral phenomena were not well integrated. The

activities were not logically structured or sufficiently encompassing in either detail or

scope to assure protection of public health and safety.

In Scptember 1994, the Board issued Recol11l11endation 94-3: calling for a

systcms approach to the dcsign basis for Building 371 at Rocky Flats and the safety

concerns associated with the incrcased storage of special nuclear mater.ial in this facility.

The Secretary has accepted the Board's recommendation, and the Department is currently

developing an Implementation Plan.

Since the types and magnitudes of potential emthquakes act as important driving

forces on facility design and modification decisions, the Board continues to monitor.

efforts to characterize ealthquake ground motion at the Hanford Site, INEL, LANL,

Rocky Flats, the Oak Ridge Reservation, and the Savannah River Site. The Board has

raised questions regarding the cmphasis DOE places on probabilistic methods for

characterizing earthquake ground motion, without concurrently reconciling that

methodology to thc analytical procedures used successfully in the conunercial nuclear

power program. Probabilistic methods have becn changing rapidly, with new and untested

assumptions and cxtrapolations being introduced. Validation of these models will require

time and experience. The Board is examining and has questioned the use of probabilistic

methods in lieu of the detcrministic approach uscd by the cOl11l11ercial nuclear industry.

The Board intends to continue to work with DOE on these mattcrs during 1995.

3. Criticality Safety

Tn Recommendation 93-2, the Board recommended that DOE retain its program

of criticality experiments to improve the criticality data base and to serve in training the

conununity of criticality engineers. The Department responded positively to this

reconUllendation. DOE chose the Los Alamos Critical Experiments Facility (LACEF) for

4 See Appendix A.

- 20 -
this purpose and formed a Nuclear Criticality Steering Committee to provide guidance in

responding to Rcconunendation 93-2. DOE identified projected funding and experiments

for cxecution through Fiscal Year 1995 and summarized the significant accomplislUlJent

in an annual report on the status of the program. The Board will continue to rcview the

adequacy of future funding for criticality experimcnts and criticality engineer training, as

well as the operation of the LACEF in general.

In late September 1994, after draining low-concentration plutonium solution from

a storage tank, an operator in Building 771 at Rocky Flats drained solution from another

tank, outside the scope of the procedure. As a result, about five liters of highly

concentrated plutonium solution were collected in a potentially unsafe geometry.

Although criticality did not occur, this action defeated the controls that had been put in

place to prevent a nuclear criticality accident. Following this event, the Rocky Flats plant

contractor suspended tank draining operations as well as a number of other operations that

involve the handling ofspecial nuclear material. In November 1994, the Board requcsted

that DOE address the issues raiscd in Board Reconunendation 94-4 as applicable to this

criticality infraction and provide a report within 60 days. At the end of the year, the

suspension was still in effect, and DOE was preparing its response to the Board's request

for a report.

4. Safety Analysis of Site Operations

The Board continued to review the technical adequacy of Safety Analysis Reports

(SAR's) of DOE facilities. During 1993, the Board's rcview of analyses of potential

aircraft crashes at defense nuclear facilities indicated that the methodologies employed in

these studies vary significantly from site to site. It was seen that the differenccs resulted

from lack of uniform guidance by DOE. Within the past year, DOE has initiated the

development of a consensus standard to address this deficiency.

In October 1993, the Board requested that DOE prepare a report providing

additional information on several technical issues concerning military overflights of the

Pantex Plant and the methodology used for evaluation of the impact of an aircraft crash

into the Pantex Plant Zone 4 storage magazines. The Board reviewed DOE's report and

questioned thc validity ofthc Pantex Plant's analysis in a letter to the Department in June

1994, and requested that a safety evaluation be conducted using methodology prescribed

in DOE Order 5480.21, Unreviewed Safety Questions. DOE addressed the issues raised

by the Board and found errors in the calculations of the probability of an aircraft crash

into Zone 4.

A cooperative activity by DOE, the City of Amarillo, the U.S. Air Force, and the

Federal Aviation Administration (FAA) resulted in an agreement to reduce thc number

of aircraft ovcrflights of the Pantex Plant significantly during the next five years.

- 21 -
The Board has reviewed safety analyscs for several other DOE defense nuclear

facilities, including separations facilitics, and the high-Ievcl waste storage and processing

facilities at the Savannah River Site (SRS). Several of these facilities are schcduled to

begin operations in 1995.

The Board conductcd several reviews of the safety of the F-Canyon and FB-Line.

These reviews resulted in the implementation of additional safety measures and the

upgrade of existing safety analysis documentation. Some ofthe specific measures includc:

(1) isolation of Tank 17.1, which contains highly radioactive americium and curium

solutions, to rcduce the risk of release to the environment; (2) upgrade of capabilities to

monitor the activity of cooling water to reduce the risk of a releasc to the environment;

(3) reclassification of the process vessel vent systcm to provide additional controls to

prevent the accumulation of flammable gas; and (4) modification of the 3rd and 4th level

ventilation systcms at the FB-Line to prevent unmitigated releases during a fire. The

F-Canyon restarted second plutonium cycle operations in February 1995 and the FB-Line

is scheduled to restart in April 1995.

The Board reviewed the safety analysis for the In-Tank Precipitation (lTP) Facility

and questioned the adequacy of several key assumptions related to the rates of benzene

generation and the dcgree of mixing. These assumptions had led to a DOE conclusion

that a flammable vapor mixture could not form in the tank headspace under either normal

or abnormal conditions. In response to the Board's questions, DOE implenlented a

program to validate the assumptions made in the safety analysis. This program includes

the developmcnt of a computer simulation of the tank headspace to determine the dcgree

of mixing during normal and abnormal conditions (e.g., loss of ventilation). The resulls

of this analysis will be validated by a test program prior to initial startup of the ITP,

schedulcd in July 1995.

The Board has monitorcd the startup test program for the Defense Wastc

Processing Facility (DWPF) and has reviewed the safety of process operations. The

design and classification of safety systems that control and prevent the formation of

flammable vapor mixtures in several process operations werc questioned. In response to

the Board's questions and DOE's own independent oversight findings, DOE reassessed

the design and c1assiJication of these safcty systems. The need for several significant

upgrades has been identified (e.g., backup inert gas purging systems). These will result

in a significant reduction of the risk to the workers and public. Board reviews also led

to comprehensive reassessment of the facility, integration of required research and

development effOlts, and significant improvements in conduct of operations, operator

training, control system design, and mitigation of process hazards. DWPF is scheduled

to start up in December 1995.

DOE has explored the concept of risk acceptance in its safety management

programs. This is a potential departure from the deterministic approach based on

- 22 -
engineering disciplines traditionally used in safety assessments in the commercial nuclear

industry as well as in the military weapons safety program. The Board has held numerous

discussions with DOE about thc use of risk assessment and its acccptance in safcty

management, particularly where data for probability estimates are Jacking. The Board

continues to encourage DOE to make maximum use of deterministic analysis coupled with

defen e-in-depth mitigation of accidents and hazards, while looking to risk determination

as additional confirmatory information for use in the Department's safety management

programs.

- 23 -
Uf. ADMINISTRATIVE MATTERS

A. PERSONNEL RECRUITMENT

As of December 31, 1994, the Board had 100 full-time employecs including two

full-time Site Representatives at the Department of Energy's Pantex Plant, near Amarillo,

Texas, and one Site Representative at the Hanford Site, in Richland, Washington.

The Board's technical staff includes individuals with extensive backgrowlds in

nuclcar, mechanical, electrical, chemical, structural, and metallurgical engineering; and

physics. As an indication of the Board's technical talent, 19 percent ofthe technical staff

hold degrees at the Ph.D. level and an additional 63 percent have Masters degrees.

Moreover, almost all technical staff members, except interns, possess practical nuclear

expericnce gained from duty in the U.S. Navy's nuclear propulsion program, the nuclear

weapon field, or the civilian reactor industry. Five other senior mcmbers of the Board's

staff have law degrees (JD), as well as degrees in a technical specialty. Both the Board

and staffinclude persons experienced in environmental impact assessments and rcgulatory

processes.

In 1994, the Board successfully recruited personnel with broad nuclear weapons

experience. A number ofstaff members completed special courses in weapons design and

construction. This expettise was supplemented by outside expelts with extensive

experience with plutonium processing and weapons assembly and disassembly. The Board

plans 10 continue its aggressive program to attract and hire additional technical staff with

backgrounds commensurate with the Board's public health and safety responsibilities.

There are currently 10 intel'l1s in various phases of a 3-year training program. Thc

recruitment and selection methods used have proven very effective based on the

outstanding academic and on-the-job performance of interns. Board staffmg projections

include the recruitment of four technical intel'lls in 1995.

B. PUBLIC HEARINGS, PUBLIC COMMENT, AND INTERACTION WITH

BOARD

During 1994, Board Members visited defensc nuclear sites on 20 occasions, where

they met with contractors, DOE representatives, members of the pUblic, labor unions, and

public interest groups. The Board conducted twelve public meetings, hearings, and

briefings at various sites throughout the country. The Board made extensive efforts to

include and inform the public of Board activities in 1994, as follows:

- 24 -
•

•

•

Individual Written Notices of Public Meetings,

Hearings, and Briefings

Individual Written Notices of Board Recommendations

to the Secretary of Energy

Responses to Jnquiries from the Public and News Media

2,750

1,325

425

C. OFFICIAL SITE VISITS BY BOARD MEMBERS AND BV STAFF

From the establishment ofthe Board in October 1989, through December 31, 1994,

Members of the Board, its staff, and its contractor experts had collectively made 689 site

visits to DOE's defense nuclear facilities. In 1994 alone, 216 site visits were made to

DOE's defense nuclear facilities by Board members, staff, and outside experts. These

visits focused primarily on selected facilities that both the Board and DOE consider to be

most pressing in light of DOE's mission.

The Board reviewed firsthand the health and safety issues at each of these sites.

During visits to DOE sites, the Board gathered information rclevant to its

recommendations to the Secretary of Energy and monitored the implementation of

recommendations that have already been made.

D. NATIONAL PERFORMANCE REVIEW (NPR) STREAMLINING

INITIATIVES

The Board believes that this new agency, not encumbered by years of bureaucratic

rulcs, regulations, and practices, has already accomplishcd many of the streamlining

objectives of the NPR. At its inception, the Board's executive leadership recognized the

impOitance of carefully structuring an organization to avoid layering, to promote

empowerment, and encourage timely action. Using this philosophy, the Board focused

its early attention to the following key organizational elements:

Starting Without Encumbrances

• As a new agency, the Board did not inherit any staff, organizational structure, or

internal regulations governing the conduct of business. Therefore, the Board was

free to create a lean organization tailored to its specialized scientific and technical

mission, without the encumbrances often associated with traditional government

operations such as, vertical layering, excessive administrative support, and

duplication of function. The simple structure of the technical staff ensures ability

to use all technical staff members in an optimum way to deal with each new topic

thc Board takes up.

- 25 -
Reducing Regulntory Burden

• The Board's policy on regulations is fully consistent with thc President's

memorandum on streamlining the bureaucracy. To date, the Board has

promulgated only those regulations necessary to maintain orderly operations --

Freedom of Information Act, Privacy Act, Govenunent in the Sunshine Act, and

Organ.izational and Consultant Conflicts of Interests. Moreover, in promulgating

thesc regulations, the Board has written the rules in ways that achieve thc statutory

purposes without burdening the Board with inflexibility, or overly-prescriptive

requirements that attcmpt to substitute detailed paperwork for sound judgment.

"Excepted Service" and Pay for Performance

• The Board successfully argued for, and subsequently receivcd through legislation

and administrative delegations, the means to overcome many ofthe administrative

road blocks that have traditionally frustrated change in government organizations.

Most prominent in this list of specific statutory authorities sought by the Board

and ultiluately granted by the Congress is the "Excepted Service" personnel

authority.

The pay banding and pay for performance concepts reconunended in the NPR

have been operational at tl,e Board for more than three years and have received

favorable review by the General Accounting Office. These concepts have proven

to be very effective in hiring teclulical talent, holding employees accountable for

their performance, and rewarding outstanding performance on the job.

"No frills" Approach to Operations

• From the first day of operation, the Board Members have set the standard for

having a "no frills" approach to conducting Board business. Administrative

expenses are carefully reviewed for absolute necessity bcfore expenditures are

allowed. For example, tile Board does not own or lease automobiles. It does not

employ chauffeurs and it has carefully enforced the Federal Travel Regulations,

including the restrictions on the use of first-class and business-class travel. Thcse

internal policies have been .in place since its inception with no adverse impact on

operations. Internal directives werc written to give practical guidance in tile most

simplified man.ner.

Effective Organization Structure

• The Board maintains focus on its mission respecting the adequate protection of

public and worker health and safety at DOE defense nuclear facilities. Using a

matrix form of organization, the Board gained management flexibility and avoided

- 26 -
the need to establish layers of middle management that divert limited staff

resources from performing health and safety reviews.

Adopting the "economies ofscale" philosophy for obtaining needed administrative

support services, the Board negotiated Interagency Agreements with thc U.S.

Nuclear Regulatory Commission, the National Science Foundation, the Public

Health Service and the General Services Administration to obtain immediate

support for accolU1ting, procurement, personnel, and payroll serviccs. Resources

that normally are diverted to these administrative functions remain dedicated to the

health and safety mission.

Managcment Continuity

• Undcr the Board's enabling legislation, the five Members are appointed to

staggered five-year tcnns on a full-time basis. Thus, the Board has enjoyed

managemcnt continuity and has not been subjected to the disruption resulting from

frequent changes in leadership experienced by many govemment agencies. From

the first day of operation, the Board has had precise and consistent direction of the

conduct of its technical mission and major policy issues.

Expericnccd Leadcl'ship

• Building an organization from its statutory foundation offers a special management

challenge requiring individuals with good planning skills, organization skills, and

detailed knowledge of a wide range of Federal government policies and practices.

The Board successfully recruited a small senior management staff with

demonstrated management experience and proven accomplishments.

Using their collective knowledge of government operations, the senior

management staff helped to plan and implemcnt an organizational structure that

maximizes the effectiveness of the scicntific and tcclmical resources available to

the Board and avoids layers of managemcnt.

Information Tcchnology

• The Board has encouraged the full use of today's advanced computer capabilities

by investing in state-of-the-art hardware and software. Staff members use their

desk top computers to obtain the latest information on events at defense nuclear

sites; review a data basc of more than 1,000,000 pages of technical documents

received by the Board on defense nuclear facilities; access Federal Register notices

and legal decisions; and electronically send draft reports to colleagues for review.

Expert consultants, engineers on travel, and site representatives send and receive

- 27 -
elcctrollic communications through remote access to the Board's local area

network.

During FY 1994, the Board became the first agency serviced by GSA to switch

trom manual time and attendance reporting to a fully automated system -- the

Electronic Time and Attendance Management System (ETAMS). This automated

system improves accuracy and speeds reporting. Automation initiatives such as

these have offset the need for additional administrative and clerical staff through

efficiency gains.

In FY 1995, the Board plans to further investigate thc use of electronic commerce.

The Board's staff has met three times with senior members of the Electronic

Commerce Acquisition Team (ECAT) to determine if there is an economical way

for the Board to apply this initiative given the small size of the agcncy and the

limited number of procurements generated each year.

Accountability vs. Excessive Controls

• Small organizations such as this Board cannot afford to waste scarce resources

establishing layers of internal management. The Board believes that the

foundation for a strong, effective program to prevent fraud, waste, and abuse of

government property and funds begins with the line managers responsible for

overall program administration.

An independent review of the organization structure and management ofthe Board

conducted by the Institute of Public Administration recognized the significant

progress and accomplishments made by the Board in establishing a streamlined

structure with a minimal commitment of resources. Also, a recent independent

audit of the Board's administrative operation by Gardiner, Kamya & Associates,

a privatc accounting finn, confirmed that a reliable and workable system of

management controls opcrates as an integral part of the Board's administrativc

systems.

Customer Service

• In the Board's public health and safety rcviews, contacts with the public are

primarily through open hearings and access to the Board's public reading room.

Since 1990, the Board has held 38 public hearings at sites across the nation and

in Washington, D.C. The public reading room is open to the public every

working day and the staff has received many complimentary letters from private

citizens, public interest groups, corporations, and other government agencies.

- 28 -
To expand public access to its records and deliberations, the Board has established

a bulletin board on the INTERNET that lists, among other things, the full text of

every recommendation made by the Board to the Secretary of Energy, and staff

trip reports are being added. This bulletin board was established in July 1994.

More than 7,000 callers had accessed the files offered to the public for inspection,

and more than 2,500 copies had been made of the files available on the bulletin

board, as of January 1995.

This automation initiative has empowered the staff to be more sel f sufficient and

productive while ensuring that the public's information needs are better served.

- 29 -
IV. PLANNED FOCUS OF BOARD ACTIVITIES IN 1995

As noted in last year's Annual Report, protecting the health and safety of the

public, and especially of on-site workers because of their proximity to any hazards,

becomcs more challcnging as additiona.l defense nuclear facilities make the transition from

production, while others remain in operation or are rcstarted. As facilities cease

production and enter thc transition and decommissioning phases, hazardOUS operations will

likely increase. This is so because new tasks will be performed involving materials and

equipment in degraded form. The significant issues in this area remain as they existed

a year ago, including:

• the necessity of operating obsolete or shut-down processing facilities for short

periods to remove in-process radioactive or hazardous materials;

• surmounting technical problems associated with existing high-level radioactive

waste storage tanks;

• design, construction and startup of new facilities for interim and long-term storage

of wastes;

• elimination of corroding spent fuel, even though facilities normally used to process

the fuel are shut down; and

• the need for safe decommissioning of a number of major nuclcar facilities.

rn the weapons-related areas, the teclmical challenges facing DOE and the Board

will require adjustment as DOE's plans for the complex change. Major weapons-related

issues requiring continuing attention include:

• safe dismantlement of approximately 2,000 nuclear wcapons per year 1Il

accordance with improved, standards-based methods;

• the requirement to provide substantially increased capacity for the safe storage of

weapons-grade plutonium, enriched uranium, and other nuclear materials removed

from weapons; and

• the neccssity for continuing detailed review of DOE's resizing of the weapons

complex, and its use of the Stockpile Management and Stockpile Stewardship

programs to ensure that nuclear safety is retained.

- 30 -
A. COMPLEX-WIDESAFETY ISSUES REQUIRING PRIORITY ATTENTION

IN 1995

Within the broad context depicted above, the Board plans to continue its emphasis

on a number of safety issues across the defense nuclear complex. As in 1994, these

include the need for the Board to:

• continue to urge development and implementation of safety-related orders,

standards, and guides; to assess their adequacy; and to ascertain compliance;

• insist on DOE's adoption of systems engineering methods in developing and

managing projects and programs;

• oversee DOE's upgrading of technical capabilities and expertise;

• help to instill continued improvement in conduct of operations by DOE and its

contractors;

• oversee the safe dismantlement and storage of weapons and weapons components;

• draw attention to the need for DOE to provide prompt, long-term, and safe

processing, packaging and storage of plutonium-bearing materials;

• pursue DO' 's program for resolving ongoing safety issues associated with

corrosion and storage of spent fuel;

• help to ensure that DOE pursues excellence in the radiation protection program;

and

• oversee the safe handling and disposition of nuclear waste materials and the

control of releases to the environment.

B. SITE-SI>ECIFIC SAFETY ISSUES REQUIRING PRIORITY ATTENTION

IN 1995

As to each of the facility-specific issues and activities listed below, the Board will

(I) evaluate DOE program plans and safety analyses, (2) conduct onsite inspections as

needed of implementation, and (3) take action as needed to help to ensure the protection

of public health and safety and the safety of workers:

- 31 -
Fernald

• Safe stabilization of uranyl nitrate hexahydrate solutions.

• Implemcntation of the rcquirements of Recommendation 93-4 regarding technical

managemcnt of this particular Environmental Management Restoration Contract.

Hanford Site

• Charactcrization of high level nuclear waste in tank farms, and integration of

overall Tank Waste Remediation Systcm efforts using accepted systems

engineering principles, including effective implementation of Recommendations

90-7,92-4, and 93-5.

• Clean up of corroding fuel in the K- ast Basin, and removal of in-process

hazardous material from PFP systems.

Idaho National Engineering Laboratory

• Upgrading of ICPP fucl basins and associated safety bases.

• Disposition of remaining reprocessing solutions at the JCPP and review of safe

storage of calcined waste.

• Safety of the Advanced Test Reactor CATR).

Mound Site

• Unloading of tritium reservoirs, including rcadiness reviews, and the repackaging

of uranium and plutoniwn materials in response to Reconunendation 94-1.

National Weapon Laboratories

• Programs for ensuring safety of defense nuclear-related research and development

activities.

• Revised safety analyses of facilities, with particular emphasis on analysis for

seismic hazards at Los Alamos National Laboratory and Lawrence Livermore

National Laboratory.

- 32 -
Nevada Test Site

•

•

Establishment of a comprehensive process to prepare for and evaluate nuclear test

readiness, including implementation of Recommendations 92-6 and 93-6.

The design basis and the operational readiness of the new Device Assembly

Facility.

Oak Ridge

•

•

Conduct of operations and criticality safety at the Y-12 Plant, III response to

Recommendation 94-4.

Adequacy of nuclear material storage.

Pantex Plant

•

•

•

Design and safety basis for the new Special Nuclear Material Staging facility.

New and upgraded safety analyses to ensure teclmical adequacy.

Revised requirements on overflights and analysis of safety of overflights.

Rocky Flats

• Processing and storage of various forms of special nuclear material to meet the

requirements of Recommendation 94-1.

• Implementation of Recommendation 94-3 for systematically evaluating the design

of Building 371 for the storage of SNM.

Savannah River Site

•

•

Start up and operation of F-Canyon, FB-Line, H-Canyon, HB-Line and spent fuel

storage basins, to stabilize various forms of SNM.

Safety basis and readiness for startup of ITl' and DWPF.

West Valley

• Stattup and operation of the high-level waste vitrification facility.

- 33 -
PART 2

5TH YEAR REPORT

EXECUTIVE SUMMARY
EXECUTIVE SUMMARY

I. EXECUTIVE SUMMARY

A. SPECIAL REQUIREMENTS FOR BOARD'S FIFTH ANNUAL REPORT

TO CONGRESS

Each year the Board reports to Congress on the status of its activities during the

past year related to health and safety at defense nuclear facilities and on the Department

of Energy's progress in improving safety at those facilitics. That report, which also

focuses upon Board recommendations issued during 1994, was presented in Part 1. By

statute, the Board in its fifth annual report must address three special issues in addition

to thosc presented in a rOLltinc alUlUal report. These issues are:

• an assessment of thc degree to which the overall administration of thc Board is

believed to meet the objectives of Congress in establishing the Board;

• recommendations for continuation, termination, or modification of the Board's

functions and programs, including recomnlendations for transition to somc other

independent oversight arrangement if it is advisable; and

• rccommendations for appropriate transition requirements III the event that

modifications are recommended.

B. BOARD PROCEDURES AND ACTIONS TAKEN TO MEET THE

CONGRESSIONAL REPORTING REQUIREMENT

To prepare the assessments and recommendations on the special issues as requested

by Congress, the Board asked, and answered, a number of fundamental questions,

including:

• What were the principal Congressional objectives in establishing the Board?

• How wcll had the Board satisfied thosc objectives in its first fivc years?

• Would modification in the Board's operation or in its enabling statute improve the

Board's oversight effectiveness?

• Are changes in the Board's jurisdiction over defense nuclear facilities necessary

to reflect major changes in the defense nuclear complex?

• Is an even more fundamental change needcd, such as conversion to a regulatory

agency or licensing body?

- 34 -
EXECUTIVE SUMMARY

• How are DOE line and oversight organi"alions responding to health and safety

problems, with and without Board intervention?

• Are DOE's nuclear safety program and internal oversight enforcement units

properly organized and staffed to meet the health and safety challenges of a

defense nuclear complex in the throes of major and rapid change?

To answer these and other questions necessary to provide the information and

recommendations for the fifth annual report, the Board engaged in a number of tasks,

including the following.

1. Mandatory Rcpo.·ting Rcqui"cmcnts Related to thc Fifth Annual

Report

On May 6, 1994, the Board imposed a major reporting requirement on DOE to

provide needed information on the status of its current nuclear safety programs and on the

DOE organizational roles and responsibilities for health and safety at defense nuclear

facilities. DOE submitted its final report on October 21, 1994.

2. Research lllld Documentary Information Gathcl'jng

The Board collected and analyzed a large amount of existing information related

to DOE's line and oversight safety programs, the Board's oversight of safety at defense

nuclear facilities, and the fate of defense nuclear programs (e.g., their reconfiguration or

possible transfer to an independent agency). The documents used in the development of

this report are listed in Appendix B.

3. Briefings

High-level DOE officials briefed the Board on current plans for oversight,

regulation, and enforcement ofsafety requirements throughout the DOE complex. These

briefings were a continuation of past and ongoing discussions by the Board with DOE on

topics including identification of DOE roles and responsibilities for safety, Office of

Environmental Safety and Health (EH) oversight capability, order compliance, and other

safety issues.

4. Public Hearings

To ensure that all interested groups, govenunent officials, and individuals had an

opportunity to be heard from on the special issues to be addressed by the Board in the

fifth annual report, the Board conducted a series of hearings in the fall of 1994 at

locations in the vicinity of the principal defense nuclear facilities. Written comments also

- 35 -
EXECUTIVE SUMMARY

were sought and accepted. Hearings were noticed in the Federal Register and were

advertised in local newspapers. Specifically, the Board sought information on:

• What changes, if any, should be made in the Board's operations and enabling

statute to enhance its oversight capability;

• Is regulatory/licensing authority necessary or prudent; and

• Is DOE able to self:~regulate, oversee safety and enforce safety requirements?

Transcripts of the hearings were copied and disseminated to the sites and placed

on file in the Board's public reading room for public review. Conunents, written and

oral, were documented and analyzed for incorporation by the Board into the final report.

The Board also obtaincd oral briefings and written comments fTom individuals and groups

recognized by the Board as having nuclear safcty expertise.

5. Hearings With Secretal")' of Enerb'Y llnd Seleetcd Expert Witnesses

On December 6, 1994, the Board held a public hearing with the Secretary of

Energy as the principal witness. The Secretary testified on issues relevant to this report,

such as ways in which DOE viewed the Board as effective in assisting DOE in identifying

and resolving health and safety issues. Testimony also was given by the Under Secretary

and several Assistant Secretaries who re ponded to Board questioning.

6. Determination of How Well the BOllrd Met Congressional Expectations

The Board identified Congressional expectations for Board performance by

analyzing its enabling statute, its legislative history, and other statutes, and by

participating in hearings before Congress. The Board alUJually compared its

accomplishments to the expectations and identified areas where accomplishmcnts met,

cxceeded, or fell short of expectations. In those areas where the Board believed the

expectations had not been met fully, the Board endeavored to determine the cause or

causes. The possible causes in each case included, as a logical mattcr: DOE's failure to

adequately respond to Board recommendations or activities; delays, or imposition of other

impediments; inadequacies in the methods used by the Board; inherent limitations in the

Board's statutory authority to effectuate change; lack of DOE resources or other

unforesccn difficulties; or some combination of these and other factors. Assessments of

efforts to meet expcctations are presented in Part 2, Section Ill.

- 36 -
EXECUTIVE SUMMARY

7. Oversight Options

The Board evaluated a widc range of safety oversight options for defense nuclcar

facilities in the process of developing this fifth annual report to Congress. Thesc options

range from strictly advisory, to "action-forcing" recommendations, to mandatory

directives, to regulation, and finally to liccnsing. The implications of each of the

following options are discussed in detail in Part 2, Section IV.

• Withdraw thc Board's statutory oversight responsibilities. Return to the condition

prior to establishment of the Board. Action would re 'ult in no external nuclear

hcalth and safcty oversight.

• No action option: Continue the Board's enabling statute and methods of operation

unchanged.

• Options for improvement of Board effectiveness which do not require statutory

amendment:

(I) Engage high-level DOE officials in correcting safety deficiencies, and

maintain their focused attention until implementation plans are completed;

(2) Make better use ofstatutory tools currently available to the Board, such as

formal hearings, to foster accountability, and more expeditious

implementation of Board recommendations and safety improvements; and

(3) Improve Board's programs for informing and involving the public.

• Options for modifying the Board's enabling statute to cure specific problems

identified during the first five years and to prevent dclays in DOE's

implementation of Board recommendations. Changes considered by the Board

include:

(I) Shortcning the statutory period allowcd for DOE responses to Board

recommendations and the period allocated for development of an

implementation plan once a recommendation is accepted;

(2) Mandatory Board revicw or certification of the qualifications of key

nuclear safety personnel;

(3) Explicit Board authority to stop work, based on safely considerations,

without resort to the recommendation process;

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(4) Board approval required for startup of new facility or restart of old ones,

similar in principle to its current responsibility at Rocky Flats for restart

of plutonium operations;

(5) Authority for the Board to either approve or set safety standards, not just

propose them;

(6) Incorporation of DOE implementation plan commitments for accepted

Board recommendations into the contracts of M&O and other contractors;

and

(7) Addition of authority which would allow the Board to mandate corrective

action for safety problems identified in Board recommendations.

• Major revision to Board's enabling statute: Retain Board structure but re-orient

from advisory/rcconunendation format to another such as:

(I) Regulatory authority, with enforcement powers, but without licensing

authority; and

(2) Regulatory and licensing authority.

• Authorize an existing agency, such as NRC or EPA, or establish a new agency to

regulate DOE.

• Establishment of a new agency with single administrator or headed by a

Conunission to undertake any or all of the above.

8. Board Deliberation and Preparation of Final Report

The Board reviewed the available information and staff analyses and proceeded

with individual discussions, briefings, and deliberations on viable oversight options. The

reconunended options in the Board's final report are accompanied by the Board's reasons

for reconunending the options to Congress.

C. ASSESSMENT OF HOW WELL THE BOARD MET CONGRESSIONAL

OBJECTIVES

The Board identified Congress' objectives by analysis of the Board's enabling

statute and its legislative history, hearings conducted subsequent to the establishment of

the Board, and other supporting documentation. Conclusions as to the Board's success

in meeting those objectives called for self-assessment and judgment, which unavoidably

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involve subjective opinions about which reasonable minds can differ. The appropriate

starting point of tlus analysis is an assessment of the effectiveness of the safety

recommendation process itself.

1. Ensuring Adequate P"otection Through Effective Use of Board

Recommendations

CONGRESSIONAL OBJECTIVE: The Board is to assist DOE in improving safety

at defense nuclear facilities by identifYing potential public health and safety issues,

recommending actions to the highest levels of the Federal government to prevent or

remediate threats to safety or actual damage, and monitoring the accomplishment ofsuch

corrective actions.

The recommendation process is central to the Board's oversight of public health

and safety at defcnse nuclear facilities. The statute requires the Board to "make such

recommendations to the Secretary of Energy [or in the case of imminent or severe risk,

to the President] ... as tbe Board determines are necessary to ensure adequate protection

of public health and safety." 42 U.S.C. §§ 2286a(a)(5) and 2286d(g)(J). The Secretary

of Energy must accept or reject all or part of the Board's recommendations within fortyfive days (unless extended) after publication in the Federal Register. DOE must then

transmit an implementation plan for the acccpted portions of the reconunendations to the

Board within ninety days (unless extended) after publication of DOE's acceptance (135

days with extension). The average amount of time to transmit an acceptable plan has

been 225 days.

To date, the Board has issued 31 sets of recommendations to the Secretary of

Energy, containing 139 individual specific recOillinendations. The Secretary of Energy

has accepted all of the recommendations in the Board's first five years of operation, with

the exccption of the most recent one datcd December 30, 1994, wluch is in thc process

of being reviewed by DOE. Ten sets of recOillinendations have either been fully

implemented or have been supersedcd or consolidated with subsequent rcconuuendations.

The remaining 21 are in various stages of implementation.

As a result of the Board's efforts, substantial nuclear safety improvements have

been made in fundamental areas at defense nuclear facilities after DOE acceptance and

implcmentation of Board safety recOillinendations. These areas include operational

readiness reviews; compliance with safety standards, orders and requirements at certain

facilities; technical training at DOE sites; discipline of operations; the safe handling of

nuclear materials; and radiation protection. The Secretary corroborated this finding in

testimony before the Board on December 6, 1994. She stated that the Board had assisted

the Department in identifying and correcting public health and safety deficicncies at

defense nuclear facilities in key areas including: compliance with DOE safety

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requirements including Orders; hiring, retention, education, and training of qualified DOE

teclmical personnel; readying facilities to opcrate safely, and conduct of opcrations.

However, this progress notwithstanding, the Board believcs the pace has becn slower than

had been anticipated, especially in raising the level of technical competence of DOE

personnel.

The Board's recommendation process for effectuating safety improvements at

defensc nuclear facilities has proven to be sound in achieving its stated objectivcs.

However, the ultimate goal of the recoilUllendation process to improve the safcty status

of defensc nuclear facilities is susceptible to dclays, sometimes major oncs. The problems

arc most apparent when DOE should take corrective action, or delays doing so in a timely

fashion, and the Board is unable to cOl11pel the actions necessary. Howevcr, as will be

sUl11marized, the Board believcs that its currently available statutory tools are suflicicnt

to countcract such difficulties in the recommendation process.

2. Fostcr the Development and Implementation of Adequate DOE Safety

Standards Including Orders, Rules, and Other Rcquiremcnts

CONGRESSIONAL OBJECTIVE: One of the Board's principal fimctions is to

assist DOE's development and implementation of appropriate and operationally

meaningful safety standard\' (including orders, regulations and other requirements) at

defense nuclearfaci/ilies. Congress challenged the Board and DOE to achieve the safety

goal of "comparability" between DOE standards and those applied to commercial

facilities. s. Rep. No. 232, 100th Cong., 1st Sess 10, 20-21, 23 (1987).

Congress highlighted the importance of this function by listing it first among the

Board's duties. Moreover, it is the only discrete function of the Board which explicitly

contains Congressional illustrations of subject mattcr suitable for recommcndations.

Section 312(a)(1) of the Board's enabling statute providcs that the Board shall:

• Review and evaluate standards relating to the design, construction, operation, and

decommissioning of defense nuclear facilities,

• RecoilUllend specific measures to ensure that public health and safety are

adequately protected, and

• Recommend necessary changes in the content and implementation of such

standards, and identify areas where additional data or additional research are

needed.

For decades prior to establishment of the Board, DOE and its predecessors fell far

behind the Naval Reactors Program and the commercial nuclear power industry in the

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EXECUTIVE SUMMARY

effective use of nuclear safety standards. As a result ofstressing the need for standardsbased operations, the Board has had a substantial constructive effect in bringing about a

basic change in DOE's devclopment and use ofstandards, including DOE Safety Orders,

rules, and other nuclear safety requirements to ensure the safety of defense nuclear

facilities.

Consistent with its congressional mandate, the Board has caused the deficiency in

DOE's standards program to be addressed, both with respect to DOE attitudes and

practices. The sheer magnitude and pervasive nature of the problem leads to a need to

continue the pressure for change into the futurc. As is no doubt inevitable, the Board

continues to encounter some resistance to acceptance of a requirements-based safcty

program.

In Recommendation 90-2, the Board asked DOE to identify its applicable safety

standards, assess them for adequacy, and cause full implementation ofsafety standards in

the field. At this point, five years after the issuance ofRecommendation 90-2, the process

of issuing and implementing Standards Requirements Identification Documents (SRIDs)

that list thc requirements for specific facilities, is proceeding very slowly. Since 1990,

the Board has issued a number of additional recommendations regarding DOE safety

requirements that address this key problem area. Most recently, the Board issued

Recommendation 94-5, which asked DOE to avoid delays in devcloping and implementing

requirements-based safety programs while integrating safety rules, ordcrs, and other

requirements. The Board will continue to emphasize the need for issuance of SRIDs at

defense nuclear facilities, and review of conformance to the commitments so made, as the

principal method of discharging this requirement of its enabling statute.

3. Raise tbe Technical Expertise lInd Vigor of DOE Substantinlly, and

Help Develop and Monitor DOE's Internal EH Orgnnization

CONGRESSIONAL MANDATE: The lack of a sufficient number of technically

qualified program and oversight officials underlies all ofthe health and safety problems

at defense nuclearfacilities. Recognizing this, Congress, in its report ofthe Senate Armed

Services Commillee on S. 1085, stated that the Board is expected to raise the technical

expertise ofthe Department substantially, to assist and monitor the continued development

of DOE '.I' internal Environmental Safety and Health organization, and to provide

independent advice to the Secretmy. Congress expected the Board to raise the level of

critical expertise, technical vigor, and a sense of vigilance within the Department at all

levels. S. Rep. No. 232, IOOth Cong., 1st Sess. 10, 20-21 (1987).

Applicable requirements ofthe Board's enabling statute implicitly mandate that the

Board address the technical competence of DOE's personncl. For example, the Board is

required to (I) review the content and implementation of safety standards and

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(2) investigate events or practices which either adversely affect or have the potential of

adversely affecting public hcalth or safety. 42 U.S.C. § 2286a. To be effective, these

Board rcviews must consider the technical competencies of those who develop and

implcment safety standards and procedures.

In each of its first four annual reports, the Board recognized that the most

important and far-reaching problem affecting the safety of DOE defense nuclear facilitics

is thc difficulty in attracting and retaining personnel who are technically qualified to

provide the management, direction, and guidance essential for safe operation of DOE

defense nuclear facilities. It remains the most critical problem today. The Board, in its

fourth annual report to Congress, attributed this, in part, to DOE's lack of excepted

appointment authority for tcclmical personnel. A notable step forward occurred last year

when Congress granted DOE a measure of excepted service hiring authority. DOE now

has exccpted service authority for four hlmdred technical personnel.' DOE made further

progress by establishing a centralized technical intern program.

On the other hand, little progress has been made in the area of actually recruiting

and hiring qualified technical personnel for line and oversight positions in the office of

the Assistant Secretary for Defense Programs (DP). The offices of the Assistant

Secretaries for Environmental Management (EM) and for Envirorunent, Safety, and Health

(EH) have been recruiting and hiring, but it is still unclear what percentage of new hires

will be devoted to teclmical positions involved with nuclear safety. Excepted scrvice

authority has been little used to date. Recommendation 93-3, which deals with the issues

of hiring, educating, and training tecllllical persOilIlel, remains essentially unimplemcnted.

While preparing the Implementation Plan for Recommendation 93-3, DOE officials

stated a preference for attempting to cure technical deficiencies by education and training

of the existing workforce as opposed to hiring new talent. Although DOE's preference

appcars to be even stTonger due to personnel reductions imposed on the Department,

progress on training and education lags. While the Board has issued a number of

recommendations (Rccommendations 90-1, 92-7, and 93-3) on this issue, the problem has

not bccn successfully reSOlved.

The Board also has addressed the retcntion of critical technical expertise at the

weapons laboratories where employees were already teclmically well-qualified. The Board

has drawn attcntion to the safety implications of the loss of unique talents from DOE and

its contractors caused by thc down-sizing of the defense nuclcar complex. This problem,

which is addressed by Recommendation 93-6, is particularly acute for the assembly,

Prior to 1995, DOE had authority for 200 excepted service positions.

Congressional action in 1995 increased that number to 400.

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EXECUTIVE SUMMARY

disassembly, and testing of weapons, where budget pressures and other constraints are

leading to severe erosion of the talent pools on which much of the weapons program has

depended. The need for retention of technical expertise also extends to maintaining the

capabilities to conduct criticality cxperiments necessary to provide a good base of

information for criticality control. This is the subject of Rccommendation 93-2.

4. Review DOE Safety Management, Oversight, and Enforcement

}>rograms

CONGRESSIONAL MANDATE: Recognizing the paramount importance o/DOE 's

own safety programs, Congress required the Board to oversee, monilor, and assist DOE's

internal management and oversight 0/sCi/ety at defense nuclear facilities.

Defense nuclear facilities arc maintained and operated by contractors under the

direction, guidance, and oversight of rederal employees ofthe DOE. The Board and DOE

have often recounted the principle that line management bears the primary responsibility

for safe operation of defense nuclear facilities. No amount of oversight, whether internal

or external, can compensate for a line management which is neither dedicated to safety

nor competent to achieve it. The Department must accelerate improvement in the

effectiveness and competence of line management within DOE and contractor

organizations, irrespective of whether oversight is accomplished internally, by external

oversight similar to the Board's, or by an outside regulator.

The Department initiated a reorganization in 1992 which led to the consolidation

of oversight and enforcement of nuclear safety functions within the Office of

Environment, Health and Safety (EH). The Department recognized the necessity of

placing oversight of DOE field offices and contractors in the hands of DOE employees

outside of line management. In tbe Board's view, it remains an open question whether

strong, independent safety oversight and enforcement programs will emerge from the

reorganization. The new structure for oversight in EH is workable provided tbat (I) the

new Office of Oversight is adequately staffed with technically qualified personnel, (2) its

independence is maintained, and (3) its findings receive full attention by line management.

The independence and capability of the enforcement unit within EH remain to be

demonstrated.

5. Review Design and Construction of New Defense Nuclear Facilities to

Ensure Public Healtb and Safety Are Adequately Protected

CONGRESS/ONAL MANDATE: Congress requires the Board to review the design

of new DOE defense nuclear facilities b~fore construction and to recommend such

modifications of the design as the Board considers necessary to ensure adequate

protection ofpublic health and safety. 42 Us.c. § 2286a(a)(4).

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EXECUTIVE SUMMARY

Under the Atomic Energy Act, defense nuclear facilities include any equipment,

device, or component, essential to the production or utilization ofspecial nuclear material.

Thus, the Board's mandate for design review extends from complete facilities, in the

normally-accepted sense, to individual parts of those facilities.

As detailed in the Board's previou . annual reports to Congress, this provision has

worked as Congress intended. The fourth annual report to Congress discussed in detail

the Board's systems engineering approach to facility design. In summary, thc Board

recognizcs that design, construction, opcration, and decommissioning of a facility

constitute a complcte life cycle system, and facilities must be developed with this entire

history in mind. Any action related to one part of a facility during a discrete period of

its life cycle must consider effects on the entire facility over all portions of the life cycle.

The Board applies this approach to system safety rcviews of cxisting (already-designed

facilities) as well as to designs of new facilities or modifications of existing facilities.

Furthermorc, DOE and its predecessor agencies have more often than not used a

number of facilities at a particular site or at several sites in successive stages of a single

project. This has led to facilities important for a single future mission of DOE being

distributed among the complex of DOE's laboratorics and production sites. Therefore,

the use of a systems engineering methodology in solving DOE's ongoing problcms

requires addressing a system extending across one or more sites. Considerations of this

sort affect construction and operation of single facilities that are only destined to be part

of a larger enterprise.

For existing facilities, the Board rcviews and analyzes thc adequacy of the

radiological safety design basis. For new facilitics, the Board analyzes thc design as early

in the dcsign and construction process as possible. Sixtcen design and construction

reviews are being conductcd at ten defense nuclear sites. Eleven others are complete and

four additional rcviews are being planned.

The Board bclieves that its existing statutory authority for review of dcsign and

construction is sufficient to satisfy Congres ional objectives for tlus component of the

Board's oversight function. DOE has been cooperative and responsive to review findings.

For example, at Savannah River Site, systems were reclassified to safety-related at the

Defense Waste Processing Facility, tritium inventory limits were adopted at the

Replacement Tritium Facility, and power limits were adopted at the K-reactor pursuant

to Board Recoll1lllendation 91-5.

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EXECUTIVE SUMMARY

6. Determine That DOE's Response to Board Recommendations

Adequately Protects Public Health and Safety Defore Restart of

Plutonium Operations at Rocky Flats

CONGRESSIONAL MANDATE: In 1992 the Senate Armed Services Committee

expressed concern with the saJe restart oj plutonium buildings at the Rocky Flats

Environmental Technology Site (Rocky Flats) in the National DeJense Authorization Act

Jor Fiscal Years 1992 and 1993. Section 3133 oj that Act requires the Secretwy oj

Energy to respond to the Board's recommendations numbered 90-2, 90-5 and 91-1 to the

Board's sati~faction beJore plutonium operations are restarted in buildings at Rocky Flats.

The Board's implementation ofthis provision has operated as Congress cxpected

it would. On a building-by-building basis, DOE was required to demonstrate to the Board

that defense nuclear facilities at Rocky Flats wcre ready to operate safely. The process

hclped bring satisfactory safety results in the restart of Buildings 559 and 707.

7. Restore Public Confidence in Safe Operations of DOE Defense Nuclear

Facilities

LEGISLATIVE HISTORY' The report ofthe Senate Armecl Services Committee

stated that, above all, the Board must have a primwy mission to identify the nature and

consequences ofany Significant threats to public health and safety, to elevate such issues

to the highest levels ofauthority, and to inform the public. S. Rep. No. 232, 100th Cong.,

1st Sess. 20-21 (1987).

Almost without exception, members of the public who have commented on the

quality of the Board's technical work to upgrade safety at defense nuclear facilities have

been complimentary of it. However, despite extensive action on the part of the Board and

its staff to inform the public, the hearings conducted during 1994 in preparation for the

fifth arullial report revealed continued dissatisfaction on the palt of some individuals and

organizations with what is perceived as lack of access to Board decisionmaking processcs.

To put this criticism in pcrspective, the Board's statutory mandates regarding public

access must be understood.

The Board's enabling statute prescribes how and when the Board is to notify the

public of its actions and directs the Board to olicit public comments, data, views, or

arguments and technical data. Where the Board, as a result of its deliberations,

determines that action is necessary, section 312 of its enabling statute requires the Board

"to makc such recommendations to the Secretary of Energy with respect to Departmcnt

of'nergy defense nuclear facilities ... as the Board detcrmines are necessary to ensure

adequate protection of public health and safety." Section 315 of the Board's enabling

statute spccifically prescribes the process by which the public is to be informed and to

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EXECUTIVE SUMMARY

comment on the recommendation process. The Board's enabling legislation provides for

public availability and com.ment ofBoard recommendations "after receipt by the Secretary

of Energy" or the Presidcnt in appropriate cases. 42 U.S.C. §§ 2286d(a) and g(3). On

July 24, 1992, thc D.C. Circuit Court of Appeals upheld the Board's rules implementing

the Government in Sunshine Act. The Court determined that any Board deliberations on

potential reconunendations for the President or the Secretary of Energy regarding health

and safety issues at DOE's defcnse nuclear facilities must be conducted in closed meetings

pursuant to the Board's rules under the Sunshine Act. Natural Resources Defense Council

v. Defense Nuclear Facilities Safety Board, 969 F.2d 1248 (D.C. Cir. 1992), cert. denied,

113 S. Ct. 2332 (1993).

In its Annual Reports to Congress during the past five years, the Board has

highlighted its actions to inform members of the public and to incorporatc their views in

the process of oversight over the health and safety of defense nuclear facilities. The

Board has carefully adhered to requirements for publication of recommendations and the

Secretary's responses, and for receiving conunents during dcvelopment of its

rcconunendations. The Board publishes the full text of its recommendations in the

Federal Register and distributes all reconunendations to its own public reading room

(established in 1991) and the DOE regional public reading rooms. Each Federal Register

notice solicits public comments, and the Board carefully considers all comments received.

Concurrently, the Board provides personal notice by direct mail to a lengthy list of

individuals and organizations and to others when requested. Congressional rcpresentatives

and committees, federal and state officials and committees, public interest organizations

and members of the public receive such notice.

In addition to comments, the Board receives and responds to numerous requcsts

for information, some pursuant to the Freedom of Information Act, and the rest as direct

inquiries. The Board has been complimented for its timely and complete responses, and

no Board response to a FOIA request or a request for public documents has been

judicially challenged.

The Board has held a total of 38 public meetings or hearings in Washington, D.C.,

or in cOimnunities neal' defense nuclear facilities. These meetings provide opportunitics

for interested groups 01' persons, public and private, to express their views as to DOE

facilities, dircctly to the Board members in informal and in open discussions near the

sites.

In 1994 the Board conducted nine public hearings for the sole purpose ofreceiving

the views of interested persons regarding (I) the Board's effectiveness in meeting its

objectives, (2) recommendations to continue, modify or terminate the Board's functions,

and (3) reconunendations on implcmenting modifications. All but one of these hearings

were held near DOE defense nuclcar facilities. The remaining hcaring, at tbe Board's

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EXECUTIVE SUMMARY

offices in Washington, D.C., was for the purpose of receiving testimony from the

Secretary of Energy and Senior officials of the DOE on these topics. Comments were

received, either orally or in writing, from eighty-four individuals or groups related to the

local hearings at DOE's sites, and have been incorporated into this report.

D. RECOMMENDATIONS FOR APPROPRIATE TRANSITION

REQUIREMENTS IN THE EVENT THAT MODIFICATIONS ARE

RECOMMENDED

The Board makes no recommendations for statutory authority changes to its

function or organization. Thus, no transition requirements arc needed.

E. RECOMMENDATIONS FOR CONTINUATION, TERMINATION, OR

MODIFICATION OF THE BOARD'S FUNCTIONS AND PROGRAMS

I. Continuation of Extemal Oversight Function

The Board believes the continuation of external oversight of the nuclear safety

management of defense nuclear facilities is advisable. In addition, the Board's public

hearing records show that the DOE, state and local governments, and the public believe

the external oversight function entrusted to the Board has proved to be beneficial and

merits continuance. The Secretary of Energy so testified at the Board's public hearing

held on December 6, 1994.

WillIe progress has been made by the DOE in restructuring and implementing an

internal safety management program, the need for cxternal vigilance continues to exist to

ensuring public health and safety. This need will remain so long as defense nuclear

facilities continue to store, process or use radioactive materials. Aging of the nuclear

weapons complex and mission changes, such as the transition of numerous facilities from

operations to decontamination, decommissioning, and cleanup, complicate the safety

environment and present new hazards. Although DOE has acted to develop and

implement independent internal safety oversight, effectiveness has yet to be demonstrated.

Such efforts, while necessary for any acceptable nuclear safety management program, are

not sufficient.

It is a widely-held principle that those who use radioactive material must bear

prime responsibility for assuring no undue risks to workers, the public, and the

environment. It is equally common practice, both nationally and internationally, to

provide external oversight ofsafety management programs. It was concern about DOE's

self-managed safety program, and the lack of independent internal oversight, that led

Congress to establish the Board in the first place.

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All facts considered, the Board belicves it is highly advisable to continue as an

independent external oversight agency as originally envisioned and authorized by

Congress. Further, the Board advocates such continuance regardless of which agency of

government, DOE or otherwise, administers the program for stockpile management or

stewardship of the nation's nuclear weapons complex and the decommissioning of

facilities no longer needed for national security.

2. Enhancing the Boal'd's Effectiveness Under Current Statute

The Board's statutory authority centers on making recommendations to the

Secretary of Energy. The Board has experienced a number of problems with the

recommendation process, particularly with achieving full and timely implementation of

recommendations by DOE and informing the public as to the safety issues on the Board's

agenda. The Board evaluated its experience with the reconunendation process with

increased effectiveness as the objective. The Board considered (I) ways for achieving

more timely DOE responses using authority of the existing statute and (2) potential

benefits from statutory changes.

a. Current Statutory Authority

The Board identified a number of means for exerclsmg its current statutory

authority more effectively. These include the following.

• Focus and maintain the attention of DOE top officials on correcting safety

problems. Early and sustained involvement by high-level DOE officials

respon ible and accountable for progress enhances timely and effective responses

to recommendations.

• Conduct hearings, and where appropriate, public hearings, to effectively elevate

issues, focus attention, and increase accountability.

• Increase prompt dissemination of safety information to the public t1U'ough

increased use of public hearings.

• Provide additional on-site representatives, who will be instructed to interact with

members of the public locally on a regular basis.

• Continue and extend avenues for disseminating information electronically to the

public.

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EXECUTIVE SUMMARY

b. Statutol'y Changes Considered

Potential changes the Board considered and its conclusions are as follows.

• Shortening the period for DOE to develop implementation plans once a

recommendation is accepted. (DOE rcgularly takes about 225 days to issue an

implementation plan rather than the statutorily mandated 135 days.)

The problem with shortening the time period is that it does not providc sufficient time for

DOE to develop implementation plans adequate to attack complex safety problems.

Engaging and working directly with upper level managcment at DOE, however, is

necessary in achieving acceptable Implementation Plans, and it can speed the process.

• Require Board approval for startup or restart and granting stop work authority

based on safety considerations, independent of the recommendation process.

Startup and restart approval based on a Board review of the facility and its administrative

programs would be similar in effect to licensing. In the past five years, however, DOE

has shown no inclination to operate a facility in an unsafe marmer once the Board had

pointed out problems. The Board is satisfied that, should a situation arise where startup

or continued operation of a facility might be contemplated by DOE despite serious safety

problems, or result in imminent or severe risk, a reconunendation to the Secretary or to

the President would result in prompt action.

• Board concurrencc with, or establishment of safety standards.

DOE is in the best position to develop its own rules. To assumc this responsibility, the

Board would need to takc over considerable management structure which is resident

within headquarters and the field offices of DOE, along with some control over DOE

contractors and national laboratories. The Board concludes that standard-setting or

approval powers are not needed at present because the Board has becn able, through the

recommendation process, to spur DOE to develop or revise safety standards where

necessary. The Board believes that timeliness of issuance of Orders and standards can bc

addressed through increased involvement of DOE's upper management in the process.

• Incorporation of DOE implementation plan commitments to the Board into DOE's

contracts for operation of DOE facilities.

With few exceptions, the mandates in the Board's enabling statute are directed

toward DOE, not its contractors. The contractors, however, are instrwnental in the

development of implementation plans and are vilal to the conlpletion of thosc plans. The

Board's review of existing contracts and requests for proposal often reveals that actions

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EXECUTIVE SUMMARY

related to implementation of the Board's recommendations and DOE's safety Orders are

not contractual requirements. Because the Board has only rcccntly brought this issuc to

the attention to DOE management, statutory amendment is unnccessary at this time.

There are also numerous legal and practical impediments to implementing such a course

of action.

• Board authority to compel DOE and contractor action to implement Board

recommendations.

A statutory change could authorize the Board to issue compliance orders and to

takc enforcement actions against DOE and its contractors when commitments made in

implementation plans addressing Board recommendations are not fulfilled. Compliance

orders are an appropriate tool--uscd by many Federal regulatory agencies--to mandate

spccific corrective actions, suspend certain activities, or carry out programmatic

commitments. Board orders directed to DOE, if authorized by statute, would not give rise

to procedural complexities such as the need to meet Administrative Procedure Act hcaring

requirements. Board orders to contractors would need to be accompanied, for due process

reasons, by the offer of an administrative hearing to the contractor if factual or other

matters are in dispute. This would in effect make the Board a quasi-regulatory agency,

which Congress, in establishing the Board, rejccted. Tlus option also might create an

incentive for DOE to submit weak, non-specific implementation plans incorporating

lengthy schedules inconsistent with the urgency of safety problems.

3. The Need for Formal Regulatory or Licensing Authority

During tlle past year, there has been much discussion of the extcnt to which DOE

is self~regulating. "Self-regulating" means the extcnt to which the Department's programs

and actions, operating undcr the constraints ofthe AtO!llic Energy Act, are not constrained

by other Federal and State laws. The premise that today DOE is self-regulating is

inaccurate. It is a carryover from thc early days of the Manhattan Project and the Atonuc

Energy Commission (AEC). Defense nuclear activities were exempt from licensing under

the Atomic Energy Act and, with some exceptions, remain so today. However, excmption

from licensing is not synonymous with exemption from extcrnal oversight. In fact, DOE

is subject today to very substantial external regulation and oversight. This results not only

from Board ovcrsight of nuclear safety, but also from the Environmental Protection

Agency (EPA) (RCRA, CERCLA, the Atomic Energy Act, the Low Level Radioactive

Waste Policy Act, the Clean Air, Clean Water, and Fedcral Compliance Agreement Acts)

and to a more limited extent the Nuclear Regulatory Commission (NRC) (Nuclear Waste

Policy Act, 1982). Thc most notable current exception to external oversight is in the

Occupational Safety and Health Administration (OSHA) area. The extent of existing

regulation is graphically displayed in Figure I.

- 50 -
EXECUTIVE SUMMARY

In the areas within thc Board's jurisdiction, the recommendation process has

resulted in significant progress in improving DOE's internal safety programs. Thc Board

expects a greater rate of improvement, and anticipates that more aggressive use of its

existing powers will compel that progress. Shifting to a rcgulatory format at this point

would not only be costly, but could also be counterproductive. Regulations which are

appropriate to the defense nuclear complex would be nceded and an independent

compliancc and enforcement program would have to be structured.

The Board's current oversight responsibilities and its position regarding the need

for formal regulation or licensing of DOE defense nuclear facilities is displayed in

Figure 2, which dividcs the defense nuclear complex into four parts. Part I of Figure 2

displays the traditional facilities and functions of the defense nuclear complex--weapons

assembly, disassembly, and testing; weapons design at national laboratories; and other

production facilities. The legislative history pertaining to the establislmlent of the Board

clearly indicates Congressional interest in continuing to exempt defense nuclear facilities

from licensing. Licensing provides the possibility and authority for a licensing agency

to deny permission to construct or operate. Obviously, Congress chose to reserve

decisions affecting national defense and security for the President and Congress. Congress

did, however, believe there was a need to subject public health and safcty of DOE's

defense nuclcar facilities to formal external oversight. This oversight includes the dcsign,

construction, operation, and decommissioning of defense nuclear facilities. At a

minimum, in the Board's view, those facilities of the defense nuclear complex deemed

necessary for defense and security should continue to be constructed and operated subject

to oversight of the Board, but WitilOut the encumbrances of a formal licensing process.

Part II of Figure 2 displays facilities and functions related to the decontamination

and decommissioning of facilities no longer needed for production, and those necessary

for the treatment, storage, and handling of nuclear waste. The rationale for exempting

facilities no longer needed for national security purposes is somewhat different from the

case madc for continuing to exempt defense nuclear facilities required for national security

and defense from licensing.

The Board is currcntly authorized to provide external oversight of defense nuclear

facilities and activities from design through decommissioning. The Board's oversight

dutics appear to overlap with EPA's responsibilities when certain facilities are combined

with associated contaminated land areas to define "operable units" for cleanup under

CERCLA provisions. EPA and the states are also involved in new facilities being

constructed or operated to treat, stabilize, and safely store radioactive waste and residuals

of the production of special nuclear 111aterials.

- 5I -
ENVIRONMENT

DISPOSAL RE UIREMENTS FOR:

DEFENSE NUCLEAR FACILITY

...--------------------....

D--DESIGN-CONSTRUCTION-OPERATION-DECOMMISSIONING

STDS. IMPL. O.S.

AIR OSHA DOE DOE

ELECTRICAL OSHA DOE DOE

MECHANICAL OSHA DOE DOE

CHEMICAL OSHA DOE DOE

Radiological EPA! . Accidental Releases DOE DOE DNFSB . Normal Operations

WATEREPA STDS. - Standards

IMPL. - Implementation

O.S. - Oversight

Waste Storage

and

Management

RCRA

Hazardous

& Mixed

Waste

Transport

(DOT)

NRC

FIGURE 1

DUE TO THE COMPLEXITY OF THE ISSUES SUMMARIZED IN THIS FIGURE, IT MUST BE READ IN CONJUNCTION WITH THE FULL TEXT IN

PART II, SECTION IV.D.I.

- 52 -
DOE Defense Nuclear Complex

LABORATORIES SPENT FUEL & TREATMENT & EXCESS FACILITIES

F PRODUCTION STABILIZATION · CUSTODIAL OPERABLE

WEAPO S RESIDUALS FACILITIES · DECONTAMINATION UNITS

A

C ASSEMBLY (D) REPOSITORIES

& DISASSEMBLY · HL-W I WASTE PROCESSING .LL-W

L RCRA&

TESTING & STORAGE · MIXED

I EXCESS SPECIAL · DECONTAMINATIOl-- CERCLA · TRU

T SURVEILLANCE NUCLEAR & DECOMMISSION

I & READINESS MATERIAL RADIOACTIVE (0&0)

E SPECIAL NUCLEAR WASTE

S MATERIALS · (D&DPLUS . (D&D PLUS

ENV. RES.) ENV. RES.)

F TREATMENT

& STABILIZATION

U

N

C STEWARDSHIPINATIONAL CUSTODIAL ENVIRON- WASTE

T SECURITY & DEFENSE & MENTAL DISPOSAL

I SAFE STORAGE D&D RESTORATION

0

N

S

PART I PART II PART III PART IV

FIGURE 2
EXECUTIVE SUMMARY

There appears to be the perception in some circles that a different form of external

rcgulation of these activities, such as NRC licensing, would cnhance public acceptability

of DOE actions. The more fundamental considerations should be whether the cost of

alternative cxternal oversight and regulations would be worth the bencfits. Given the

cxtensive external regulation and oversight already accorded facilities that fall under Part

ll, it makes little sense to add yet another agency to those that DOE must deal with for

these facilities.

Ideally, one agency should retain the lead for external oversight or regulation of

these nuclear facilities from start to finish; that is, fi'om design through final disposition.

The object should be to maximize safety and minimize the cost of oversight and

regulation, not complicate DOE's compliance efforts by fragmentation of requirements

imposed by multiple agencies.

Facilities and activities that are being n':mediated pursuant to environmental

restoration laws are displayed in Part Ill. Remedial actions come under the purview of

the CERCLA, as administered by EPA, and states. In some cases, DOE will also have

made commitments to the Board regarding public health and safety aspects relevant to

remedial actions at defense nuclear facilities. The Board in such cases can and should

assist EPA by insuring that such commitments are duly considered prior to completion of

the remedial action plan. In effect, the Board should strive to assure an ordered transition

of the oversight function.

Part IV of Figure 2 clearly illustrates that final repositories for nuclear waste arc

governed by existing statutes and regulations. Thus, there is no need for additional

regulatory authority.

Currently, the Board monitors DOE compliance with facility design, construction,

and operational safety standards, and has issued recommendations rclated to facility

startup where necessary. DOE has shown no inclination to operate a facility in the face

of a Board recommendation to the contrary. Thus, the current process provides much of

the safety benefit of licensing without the associated cost and delay, and it avoids the

potential for airing security matters in hearings that would accompany formal licensing

proceedings. The Board does not, therefore, recommend formal licensing.

It has been suggested by some that formal regulatory authority might enable a

regulatory agency (I) to break the logjam often encountered in having DOE correct safety

problems at existing facilities and (2) to create a framework of safety requirements

tailored to the defense nuclear complex, much as the NRC has done for the commercial

nuclear industry. However, regulation in this case, with or without licensing authority,

would introduce drawbacks that would more than offset any advantages. Full regulation

of defense nuclear facilities is not easily reconciled with national security imperatives.

- 54 -
EXECUTIVE SUMMARY

Concessions must be made to national defense priorities over which a regulator would

have no control and no authority or capability to set. Also, transition of the Board fTom

an oversight and recommendation-oriented agency to a regulatory and licensing agency

would be very expensive. The Board does not believe that tlJis added cost would be

accompanied by a commensurate added safety benefit.

- 55 -
PART 2

5TH YEAR REPORT

ASSESSMENTS AND RECOMTvIENDATTONS
II. SETTING THE STAGE: PAST AND PRESENT SAFETY PROGRAMS

FOR DOE DEFENSE NUCLEAR FACILITIES

A. OVERVIEW OF DOE'S AND PREDECESSOR ORGANIZATIONS'

NUCLEAR SAFETY AND OVERSIGHT PROGRAMS

The Department of Energy (DOE) traces its roots to the U.S. Army Corps of

Engineers Manhattan Enginecring District, which was established in 1942 to develop the

atomic bomb. In the Atomic Energy Act (AEA) of 1946, Congress closed thc Manhattan

project and created a civilian agency, the Atomic Energy Commission (AEC), to manage

nuclear weapons matters. Thc AEC was later given responsibility for developing nuclear

reactors for naval propulsion and electric power generation; and producing nuclear

materials for civilian applications. After the 1954 amendments, the AEC also regulated

the nascent civilian nuclear power industry, combining in one agency the functions of

today's DOE and Nuclear Regulatory Commission (NRC).

The Atomic Energy Act has always coupled two major purposes with rcspect to

the military and civilian uses of nuclear materials: protccting the public health and safety,

and providing for thc common defense and security of the United States. These dual

purposes are repeated throughout Sections 2 and 3 of the 1954 Act. 42 U.S.C. §§ 20 II

and 2012. These purposes are ullchanged today. Scction 161 of the Act instructed the

Atomic Energy Commission to "establish ... such standards and instructions to govern

the possession and use ofspecial nuclear material, source material, and byproduct material

as the Commission may deem necessary or desirable to promote the common defense and

security or to protect health or to minimize danger to life or property .. _." 42 U.S.c.

§ 220 I(b). This mandate to establish standards applies today to both the Nuclear

Regulatory Commission and the Dcpartment of Energy (DOE).

Pursuant to the Energy Reorganization Act of 1974, the AEC's responsibilities for

commercial nuclear power were split: developmcnt functions were given to the Energy

Research and Devclopment Administration (ERDA), while regulatory authority was given

to the Nuclear Regulatory Commission (NRC). The AEC's nuclear wcapons activitics,

on thc other hand, were given undividcd to ERDA. In 1977, Congress combined the

fWlctions of ERDA with the Federal Energy Administrarion, the Federal Power

Commission, and units of several other agencies into a new cabinet-level department, the

DOE. DOE's authority to impose safety requirements is elaborated upon in the

Department of Energy Organization Act of 1977, 42 U.S.C. § 7101 et seq., in section

7191. Thus, DOE inherited the responsibility both to manage the production of nuclear

weaponS and to assure the nuclear safety of production activities.

As successor to the AEC and ERDA for defense nuclear activities, DOE maintains

statutory authority to establish, oversee, and enforce compliance with nuclear safety

requirements. It is often stated that the Department is "self regulating" for health and

- 56 -
safety matters at defense nuclear facilities. The statement is fundamentally accurate only

with regard to nuclear safety per se at such facilities; moreover, the imposition of

environmental statutes and regulations administered by the Environmental Protection

Agency (EPA) and the addition of the Board as an external oversight organization altcred

DOE's "self-regulating" status. Part 2, Section IV.D.I. ofthis report analyzes the role of

numerous federal and state regulators of DOE nuclear operations.

Prior to the Price-Anderson Act Amendments of 1988, the principal tools availablc

to DOE for achieving nuclear safety were DOE safety orders, which could be made

mandatory and enforceable via management and operating (M&O) contract terms. DOE

also possessed the authority to issue and enforce legally binding regulations, after public

notice and comment, and to issue administrative orders of compliance with safety

requirements under the AEA and the Administrative Procedure Act. In recent history (the

past decade, at least), DOE has not effectively invoked any of these processes and legal

mandates to enforce compliance with existing health and afety standards. It is the failure

of DOE to enforce its legal authority that spurred Congressional efforts in the late 1980's

to restructure and improve oversight and enforcement ofstandards at DOE defense nuclear

facilities.

Civil penalties may be levied for violations of nuclear safety regulations and

orders. DOE issued the final proccdural rule containing the Department's enforcement

policy and penalty procedures in August 1993, and continued the transition of

requirements in Orders to rules. DOE's progress on issuing substantive nuclear safety

rules has been slow.

Despite its long-standing responsibility for health and safety matters and authority

to enforce safety standards, DOE's paramount concern long remained production of

nuclear materials and weapons. TlJis production was accomplished by using facilitics and

practices that were tied to pre-1970 design and safety principles. Many present-day

observers, in retrospect, believe the Department paid inadcquate attention to such issues

as environmental protection, the health and safcty of workers and the public, and openness

and responsiveness to the concerns of interest groups and the public.

B. HEALTH AND SAFETY PROBLEMS LEADING TO THE CREATION

OF THE DEFENSE NUCLEAR FACILlTIES SAFETY BOARD

Although its five members were not appointed until October 19, 1989, the Board

was established in J988 as a result of the confluencc of Congress's specific health and

safety concerns with the broader policy issues discussed above. Previously in 1985,

Senator John Glenn, acting through the Senate Goverrullental Affairs Subcommittee on

Energy, Nuclear Proliferation, and Government Processcs, launched an investigation of

health and safety problems at the Feed Materials Production Center .in Fernald, Ohio.

Subsequently, Senator GlelUl asked the General Accounting Office (GAO) to review

- 57 -
health and safety issues at a number of DOE facilities around the cOlllitry. The GAO

report was issued in 1986 and documented serious safety issues at nearly all of the plants

visited.

In mid-1987, as the extent of damage due to the April 1986 Chernobyl nuclear

reactor accident became known, Congressional committees with jurisdiction over DOE

facilities, such as the Senate Armed Services Conunittee (chaired by Senator Sam Nunn)

and the Senate Governmental Affairs COirunittee (chaired by Senator John Glenn) focused

further attention on the environmental, health, and safety conditions in the nuclear

weapons complex. I\. previously commissioned study by National Research Council of

the National Academy of Sciences was also published in 1987. The study was highly

critical of safety conditions at DOE defense nuclear facilities. Among the study's

conclusions and recommendations were the following. National Rcsearch COllllcil, Safety

Issues at the Defense Production Reactors, at xiv-xviii (1987).

• DOE "has not realistically addressed the aging ofthe defense production reactors."

• The "existing level ofllllderstanding ofsevere accident behavior for the production

reactors is inadequate ...."

• A "thorough understanding of the behavior of the N-Reactor in a major 10ss-ofcoolant accident does not currently exist ...."

• There are "significant uncertainties in the ability ofthe existing production reactor

confinements to mitigate the effects of radionuclide releases that would be

expected to OCClU' during severe accidents."

• DOE's "direct discharge ofradioactively-contaminated liquid effiuents [at Hanford

and Savannah River] ... poses a safety hazard and represents an environmentally

unsound practice."

• DOE, "both at headquarters and in its field organizations, has relied almost

entirely on its contractors to identify safety concerns and to recommend

appropriate actions, in part because the imbalance in technical capabilities and

experience between the contractors and DOE staff is of sufficient magnitude to

preclude DOE from properly performing its audit function."

• DOE's "approach to management falls short of reasonable expectations III

attempting to cope with the mix of production and safety responsibilities."

• DOE's "safety oversight of the production reactors is ingrown and largely outsidc

the scrutiny of the public. Weaknesses in management of the defense production

- 58 -
reactOrS have led to a loose-knit system of largely self-regulated contractors

operating within budgetary constraints imposed by and on the Department."

Many ofthese conclusions and recommendations rciterated those ofthe earlier 1981 report

of the "Crawford Committee," and would appear again in 1988 and 1989 reports of the

National Research Council. Indeed, the 1989 report, which was in preparation at the time

of the Board's establishment, raised safety concerns that went far bcyond nuclear safety

at DOE's reactor facilities. National Research Council, The Nuclear Weapons Complex:

Management for Health, Safety, and the Enviromuent, at 4-7 (1989).

• "Virtually cvery facility in the complex has contamination on site, some of it

extensive, and many of them have contamination off site as welL"

• "[T]here arc troublesome elements in the fire protection program."

• "[A] pattern of routine use of respirators [to prevent the inhalation of radioactive

materials] is an indication of the failure of production, maintenance, and

housekeeping procedures."

• "Plutonium exists in the exhaust ducts downstream of the high-efficiency

particulate air (I-IEPA) filters at the plutonium finishing facility at Hanford ...

[and] ill an exhaust duct of Building 771 at Rocky Flats."

• "[T]herc are weaknesses in the program for controlling ... conventional industrial

hazards."

• "[n short, the medical departments are for the most part relegated to a reactive

role. . .. Medical monitoring and surveillance programs in the complex should

bc improved substantially."

• "Much of the physical plant of the weapons complex is old, and many of the

processes used in production are outdated."

Additionally, numerous General Accounting Office (GAO) reports raised serious

questions about both the safety of individual facilities and DOE operations as a whole.

Senator Glenn intTOduced legislation in April 1987 to bring DOE's defense nuclear

facilities under strict external regulation. The Reagan administration and the Senate

Armed Services Committee opposed the most stringent provisions (allowing fines and

penalties against DOE) in the draft legislation. The proposed legislation made little

headway in Congress for more than a year.

The Advisory Committee on Nuclear Facility Safety (ACNFS) was an internal

DOE group appointed by the Secretary in 1987. This committce was known as the

- 59 -
Ahearne Conul1ittee, after its Chairman, Dr. John F. Ahearne, a former Chairman of the

U.S. Nuclear Regulatory Commission. The ACNFS comprised IS highly-respected

scientists and researchers, all of whom were well-known experts in nuclear safety. The

reviews initiated by the Ahearne Committee covered the following issues among others:

• deficiencies in the waste storage program for high-level waste at the Hanford Tank

Farms, particularly the lack of a coherent characterization strategy to provide the

bases for later decisions regarding ultimate disposal;

• problems associated with accumulated plutonium at Rocky Flats, and with restart

criteria for various buildings (then) proposed to be placed back in operation; and

• Department-wide issues associated with inclusion of on-site, neighboring workers

as a group requiring consideration in safety analyses, staff training and

qualification, and adequacy of the overall DOE radiological protection program.

On September 28, 1988, the House Armed Services Subcommittee on Procurement

and Military Nuclear System began public hearings on the restart of a nuclear reactor at

the DOE's Savannah River Plant near Aiken, South Carolina. The reactor had been shut

down in August 1988 due to an operating mishap. At the hearings, a DOE official slated

that, although a start-up attempt had been aborted in August due to a rapid temperature

and pressure build-up, "we must restart the reactor" to meet national security needs. Two

days later, at a joint House-Senate hearing on the same issue, chaired by Representative

Mike Synar and Senator John GleIUl, a Congressional press release provided public details

of thirty serious safety incidents at the Savannah River reactors.

In 1988 the Senate Armed Services Committee reslUTIcd consideration of a new

version of Senator Glel1ll's 1987 proposals. In September 1988, the Armed Services

Committee adopted a modification of Title Tonly of the Government Affairs Committee

bill (S. 1085), and the Defense Nuclear facilities Safety Board was established in the

National Defense Authorization Act for Fiscal Vear 1989 (Pub. L. 100-456). The Board's

principal means of effecting change at defense nuclear facilities was to be issuance of

recommendations on health and safety to the Secretary of Energy, or in certain pressing

circumstances, directly to the President. The law was praised by Senator GlerUl as "a

major and positive departure from past practices which have led to this crisis now

affecting the U.S. nuclear weapons complex."

C. PROBLEMS ADDRESSED BY THE BOARD DURING ITS

FIRST FIVE YEARS OF OPERAnON

As would be expected, many of the nuclear safety and health issues which led to

creation of the Board became the major focus for the Board's activities during the first

five years of its operations. During the period before the ACNFS was dissolved by the

- 60 -
Secretary of Energy, the staffs of the Conullittee and the Board maintained close contact

to ensure that relevant information on safcty matters was exchanged promptly and

completely, and that both the Board and the Committee were kept fully informed of the

ongoing activities of one another. The Board surveyed the record of ACNFS activities

on an ongoing basis and continucd to follow important issues identificd by the ACNFS

that rcmained unresolvcd at the time thc Committee was dissolved. The deliberations of

the Ahearne Committee proved to be a valuable technical rcsource for the Board and its

staff.

Several ofthe Board's earliest recommendations and public hearings addressed the

safe restart of the K-Reactor at the Savannah River Site in the wake of Congressional

hearings and the National Research Council's report. The Board also quickly focused on

thc problems posed by the nuclear waste storage tanks at the Hanford Site, resumption of

selected plutonium operations at Rocky Hats, and the opcrational readiness of the Waste

Isolation Pilot Plant (WIPP).

Subsequently, the Board broadened its attention to include the dcvelopment of, and

compliance with, nuclear safety standards, including DOE Orders, mles and other

requiremcnts (Recommendations 90-2, 91-1,93-1); the need for DOE to recruit, train and

educate sufficient numbers of technically qualified personnel for defense nuclear

operations (Recommendations 90-1, 9.1-1, 91-6, 92-7, 93-3, 93-6); use of requirementsbased operational readiness reviews (Recommendations 90-4, 91-3, 91-4, 92-1,92-3,92-5,

92-6); safe managemcnt and storage of nuclear residue and waste (Recommendations 90-3,

90-7, 92-4, 93-4, 93-5, 94-1, 94-2); and use of systems engineering techniques and

integrated engineering program plans at defense nuclear facilities (Recommendations 92-4,

93-5, 94-1, 94-3). These reconunendations and associated Board activities are explained

in the Board's five mmual reports to Congress, including this report, to provide Congress

with a clear picture of the safety progress which has been made and the work that

remains.

Tlrree pillars upon which nuclear safety is based .- the quality and competence of

nuclear managers, workers, and oversight personnel in the defense nuclear complex;

disciplined ope(ation of nuclear facilities in conformance with nuclear safety standm'ds,

including requirements in orders, mles, and other safety doclllnents; and adequatc

organization and structuring of nuclem' safety programs and oversight by conullilted

managers -- werc the subject of numerous Board recommcndations, DOE reporting

requirements, and hearings and discussions during the Board's first five years of

operation.

- 61 -
D. CHANGES IN THE DEFENSE NUCLEAR COMPLEX AND

THEIR IMPLICATIONS FOR SAFETY AND HEALTH AND

BOARD JURISDICTION

Congress initially gave the Boardjurisdiction over DOE "defense nuclear facilities"

defined by statute as production or utiljzation facilities, themselves defined in 42 U.S.c.

§ 2014, "operated for national security purposes" and nuclear waste storage facilities under

the control or jurisdiction of the Department of Energy. 42 U.S.C. § 2286g. There are

numerous defense nuclear facilities at any major DOE site such as the Pantex Plant or

Savannah River Site. Congress' initia.l grant of jurisdiction to the Board was examined

in detail by the Board in Part II of its first annual repOlt to Congress.

The collapse of the Soviet Union brought an end to the Cold War, at least as it

was known from the 1950s to 1990. With the collapse camc the creation of new nations

with nuclear weapons capabilities, as well as different threats to non-proliferation and

intcrnational peace.

As a matter of national policy, United States nuclear weapons production has

stoppcd and disassembly of a large fraction of the nuclear weapons stockpile has beg1m.

DOE has closed sites for production of weapons components and has consolidated

operations required for stockpile maintenance at fewer locations. The United States has

imposed a moratori urn on nuclear weapons testing. The federal government must now

maintain a safe and reduced nuclear weapons arsenal and provide the required secure and

safe storage of nuclear components and special nuclear materials removed from the

stockpile. Thus, the Office of Defense Program's (DP) mission within DOE has shifted

from one of production of nuclear weapons materials to one ofstewardship, storage, and

maintenance of nuclear weapons and nuclear materials and the disassembly of thousands

of existing weapons.

In the meantime, DOE must safely manage large amounts of radioactive,

hazardous, and mixed wastes which have accumulated at the many weapons production

sites over the years. Many former production facilities that were shut down contain

radioacti ve materials in process lines, tanks, storage vaults, and storage pools. Safe

standby or shutdown conditions must be maintained until the facilities are readied for

clean out of the radioactive residues and decommissioning. As both DOE and the Board

have stated repeatedly in testimony to Congress, cessation of operations and movement

toward decontamination, decommissioning, and environmental restoration bring new, and

in many cases, greater threats to worker and public health and safety than when the

complex was operated in a production mode. Accomplishing these tasks brings workers

into close proximity to the hazardous materials and increases the potential for accidents

and dispersal of radioactive materials.

- 62 -
A mammoth, multiple-site cleanup of previously contaminated sites is underway,

requiring a substantially different set of technological solutions and technical rcsources

than are needed for weapons design, construction, production, assembly, and disasscmbly.

DOE, the Environmental Protection Agency, the Board, and other federal departments and

agencies, togethcr with their state counterparts and public interest groups, all playa role

in this complex cleanup effOit. Federal COUlt decisions and consent agreements by parties

to litigation heighten the need for oversight and effective management of these cleanup

efforts. In this setting, assurance of public and worker safety remains highly dependent

upon recruitment and rctention of a well-educated and trained workforce by both DOE

and support contractors, and a disciplined conduct of operations govcrned by an adequate

set of nuclear safety requirements.

The Board has conducted its oversight of the defensc nuclear complex during a

period when a change in Administrations also has taken place. Thus, while the transition

in the defense nuclear complex has occurred, a change in safety management also has

taken hold. Nuclear safety programs within the Office of Defense Programs, and

oversight of those programs by the Office of Environment, Safety and Health, have been

reorganized. Nevertheless, line responsibility for safety and indepcndent internal DOE

oversight remain the first and second levels of management "defense in depth" for nuclear

safcty in the defense complex.

In J991, Congress made two significant adjustments in Board jurisdiction which

reflect the change in the defense nuclear complex. The first adjustment was to cxpand

jurisdiction to cover DOE's inspecting and dismantling of nuclear weapons to mcet

international treaties and domestic commitments. Congress included DOE's assembly and

disassembly of nuclear weapons at the Pantex Plant near Amarillo, Texas, within thc

definition of defense nuclear facilities, together with facilities for testing nuclear weapons.

The Board's statutory ceiling for full-time staff was increased by Congress from 100 full

time equivalents (FTEs) to 150 FTEs to accomplish safety oversight of these facilities.

42 U.S.C. § 2286b(b)(I)(A). Second, rccognizing the shift from production and the

increase in the amount of decontanlination and decommissioning work at DOE defense

facilities, Congress urged the Board to expand its activities in the environmental area,

consistent with the original authorization statute. S. Rep. No. 113, 102d Cong., 1st Sess.

379 (1991).

The Board now has health and safety oversight responsibilities for the following

DOE programs.

• Disassembly and assembly of nuclear weapons at the Pantex Plant.

• DOE's stewardship of nuclear materials and weapons needed for the nation's

nuclear stockpile.

- 63 -
•

•

•

•

Operation of a downsized and reconfigured defense nuclear complex, including the

appropriatc portions of National Laboratories that are defense nuclear facilities_

DOE's internal oversight of the reconfigured defense nuclear complex.

Transition of defensc nuclear facilities to decontamination, decommissioning, and

restoration.

Storage, stabilization, and management of nuclear waste and residue from and at

defense nuclear sites tlrroughout the complex.

Some of the most significant changes in the complex stem from the transition

taking place at many facilities from production to decontamination, decommissioning, and

environmental restoration. For five years, the Board has provided oversight of DOE

nuclear waste storage facilities which are not licensed by NRC. The Board's enabling

statute also directed the Board to review and evaluate the content and implementation of

DOE standards related to decommissioning defense nuclear facilities. With DOE's

emphasis on decontamination and deconunissioning former nuclear production sites, the

Board has itself increased its attention and expenditures on those issues. The Board

provides oversight of those transition activities that are not currently regulated as waste

management activities falling under the Resource Conservation and Recovery Act (RCRA)

or Superfund. Those statutes, however, do not cover certain defense nuclear activities.

The reason for the discontinuity in EPA regulatory authority stems from definitions of

solid or hazardous waste and materials contained in RCRA and Superfund. While some

special nuclear materials are subject to RCRA and Superfund requirements when mixed

with otller conventional hazardous waste or released to the environment, they are legally

not subject to those two statutes when they are source, special nuclear, or byproduct

material governed by the Atomic Energy Act or residues subject to recycling or reuse.

The Board recognizes that the transition from production and deconunissioning to

storage and eventual disposition of nuclear material will be a primary focus of Board

activity in the future. Congress, in passing the legislation establishing the Board,

acknowledged that the line separating safety and environmental issues is an unclear one.

In separating environmental management and restoration from nuclear production and

storage operations, a key Congressional Report on the matter stated the following:

Given the existence of a comprehensive regulatory reginle, it is not

necessary to assign an environmental oversight role to a safety

board. For one thing, the technical issues are quite different,

requiring different--and additionaJ--expertise within the Board.

Second, it would needlessly dilute tile focus and mission of tile

Board. Third, insofar as tile Board's basic mission is to ensure

that, in satisfying production requirements, the commitment to

- 64 -
safety is not compromised, it is hard to discern a rationale for

including environmental restoration in the Board's charter or for

citing environmental problems in the justification for creating the

Board in the first place.

The distinction belwecn safety and cnvironmental issues, in the

Committee's view, should be that safety includes unintended

releases from ongoing production operations, which is a conccpt

that would excludc normal waste management operations and

remedial actions associated with existing waste storagc sites. The

Committee stresses that a safety board should not be prohibited

outright from crossing that potentially elusive line; the Committee

sceks only to clarify its intention that safety of production

operations must be the Board's primary concern. S. Rep. No. 232,

100th Cong., 1st Scss. 19-20 (1987).

More recently, in the report of the Senate Armed Services Committee on S. 1507,

the National Defense Authorization Act for Fiscal Years 1992 and 1993, the committec

requested the Board to expand its activities, pursuant to existing statutory authority, over

environmental restoration and waste management operations. The report stated that "[t]he

Safety Board has been very involved with the Hanford waste tanks and other limited

issues arising out of the Department of Energy environmental restoration and waste

management, but the committee would like the Safety Board to take a more involved rolc

in this area." S. Rep. No. 113, I02d Cong., 1st Sess. 379 (1991).

The Board has expanded its reviews and formal action within the boundS of its

existing jurisdiction. The Board's objective is to assure that effective external oversight

is continuously maintained during the transition of select DOE defense nuclear facilities

from DOE "self-regulation" with Board oversight to EPA regulation under CERCLA.

DOE commitments to the Board must bc retained and implemented until the transition in

oversight is completed. For cxample, the Board issued two recommendations in 1994

which bear directly upon stabilization and final disposition of radioactive waste and

residues. Recommendation 94-1 called for prompt action at various sites to stabilize

nuclear residues, and render them more safc, while tlle options for final disposition of

liqnid wastes and plutonium residues are considered by DOE. Reconunendation 94-2

deals with DOE conformance to safety standards at low-level waste storage and disposal

sites.

Discussions have been initiated with EPA and DOE regarding the Board's interest

in DOE waste management and environmental restoration activities at defense nuclear

facilities. The discussions have been focused on remedial action plans proposed by DOE

for defense nuclear facilities with significant radiological source terms.

- 65 -
Ill. ASSESSMENT OF BOARD AND DOE EFFORTS TO MEET

CONGRESSIONAL OB.JECTIVES DURING FIRST FIVE

YEARS OF BOARD OPERATION

By statutorily mandating the Board's principal functions in Scction 312 of the

enabling statute, 42 U.S.C. § 2286a, Congress told the Board and the Department of

Energy how it believed the Executive Branch could achieve adequate protection of public

health and safety at defense nuclear facilities. The Congressional purposes and goals in

establishing the Board are further illuminated by (1) other provisions of the Board's

enabling statute which give the Board tools for executing its principal duties; (2) the

legislative history of the Board's enabling Act; (3) hearings conducted subsequent to the

establishment of the Board, and (4) other supporting documentation. Detennining how

well the Board and DOE have achieved those objectives called for self-assessment and

judgment. Because judgment is involved, the assessment of how well the Board and DOE

have met Congressional objectives will remain, in part, a matter of subjective opinion

about which reasonable minds can differ. The appropriate starting point of this analysis

is an assessment of the effectiveness of the safety recommendation process itself.

A. ENSURING ADEQUATE PROTECTION OF PUBLIC HEALTH AND

SAFETY AT DEFENSE NUCLEAR FACILITIES THROUGH EFFECTIVE

USE OF BOARD RECOMMENDATIONS

CONGRESSIONAL OBJECTIVE: The Board is to assist DOE in improving safety

at defense nuclear fGcilities by identifYing potential public health and safety issues,

recommending actions 10 the highest levels of the federal government to prevent or

remediate Ihreats 10 safety or actual damage, and monitoring the accomplishment ofsuch

corrective actions.

The heart of the Board's statutory responsibilities is to "make such

recommendations to the Secretary of Energy [or in the case of imminent or severe risk,

to the President] ... as the Board determines are necessary to ensure adequate protection

of public health and safety" at DOE defense nuclear facilities. 42 U.S.C. §§ 2286a(a)(5)

and 2286(g). The Secretary of Energy must accept or reject, in whole or in paIt, the

recommendations submitted by the Board within forty-five days after publication of the

recommendation in the Federal Register. The Board may extend the period for response

up to forty-five additional days. 42 U.S.C. § 2286d(b)(t). DOE then prepares an

implementation plan for those portions of the recommendations which are accepted. The

Secretary of Energy has ninety days after the publication of DOE's acceptance to transmit

the plan to the Board (135 days with extension).

An assessment of the Board's effectiveness in achieving Congressional purposes

for establishing the Board begins with an evaluation ofthe recommendation process, given

- 66 -
its centrality to the Board's oversight of public health and safety at defense nuclear

facilities.

To date, the Board has issued thirty-one sets of recommendations to the Secretary

ofEnergy, containing 139 individual specific recommendations. The Secretary of Energy

has accepted all of the recommendations made by the Board in its first five years of

operation, with the exception of the most recent dated December 30, 1994, which is in

the process of being reviewed. Ten sets of recommendations have either been fully

implemented or have been superseded or consolidated with subsequent recommendations.

The remaining 21 are in various stages of implementation.

The report of the Senate Armed Services Committee on S. 1085, a forerunner to

the bill which established tbe Board, stated that, above all, the Board should have a

primary mission to identify the natme and consequences of any significant threats to

public health and safety, to clevate such issues to the highest levels of authority, and to

inform the public. S. Rep. No. 232, 100th Cong., 1st Sess. 20-21 (1987). As will be

shown, the Board recommendation process for effecting safety improvements at defense

nuclear facilities has proven to be SOUtld in achieving the objectives. However, the

ultimate goal of the recommendation process to actually improve the safety status of

defense nuclear facilities is susceptible to delays, sometimes major ones.

Assessing the recommendation process requires several steps in which the

constituent parts of the process are analyzed. For the process to work, the Board must

have access to all relevant nuclear safety information. Meeting the first Congressional

objective -- identifying significant threats to public health and safety -- is directly tied to

the effectiveness of the Board's authorization for obtaining technical information

necessary to develop recommendations.

1. Processes for Identifying Public Health and Safety

Issues at Defense Nuclear' Facilities

Congress provided the Board with a number of statutory tools which enable

members to gather the information needed to perform the Board's mission. Hearings on

safety issues may be conducted, and witnesses and documents subpoenaed if necessary,

to secure testimony or evidence. 42 U.S.C. § 2286b(a). Alternatively, the Board may

impose binding reporting requirements on DOE regarding health and safety matters at

defense nuclear facilities. 42 U.S.C. § 2286b(d).

The Board's enabling statute provides that the Board shall investigate events or

practices at defense nuclear facilities that have or may have an effect on public health and

safety. The pmpose of any such Board investigation shall be to determine whether DOE

is adequately implementing safety standards, what the implications of such event or

practice are for such standards, and whether such event or practice reflects a systemic

- 67 -
problem at other DOE facilitics. Although the Board has plenary authority to make health

and safety recommendations, the provision regarding investigations states that a purposc

of the investigative process is to provide information for recommcndations to the

Secretary regarding changes in safety standards or their implementation. 42 U.S.C.

§ 2286a(a)(2). The report of the Senate Armed Services Committee on S. 1085 stated

that the focus ofthe Board's investigations should be on preventing nuclear incidents from

occurring. Priority should bc given to preventing nuclear incidents which could

significantly adversely affect the public health and safety. S. Rep. No. 232, 100th Cong.,

1st Scss. 25 (1987).

Thc statute requires DOE and its contractors to "cooperate with the Board and

provide the Board ready access to such facilities, personnel, and information as thc Board

considers necessary ...." 42 U.S.C. § 2286c(a). The statute also specifically authorizes

acccss to two types of safety information: highly sensitive information on atomic

weapons that is necessary to cany out the Board's functions, 42 U.S.C. § 2286a(b), and

"design and operational data, including safety analysis reports, from any Department of

Energy defense nuclear facility." 42 U.S.C. § 2286a(a)(3).

In practice, the Board identifies circumstances warranting safety recommendations

through all these statutory means, as well as less formal information gathering. The

Board's own activities during the first five years included numerous site visits, hearings,

inquiries made of DOE technical and policy personnel, briefings, evaluations of technical

reports and documents preparcd by DOE, issuance offormal Board reporting requirements

to DOE pursuant to 42 U.S.C. § 2286b(d), and similar avenues of gathering factual

information regarding the safety status of defense nuclear facilities. Board staff, and

expert consultants including permanent site representatives at the Pantex Plant and, the

Hanford Site, substantially augment the safety information available to the Board with sitc

visits, trip reports, technical assessments, and, in appropriate cases, inquiries or formal

investigations of safety issues.

The Board and its staff have completed hundreds of tcchnical reviews and

assessments at defense nuclear facilities. In addition, numerous formal investigations of

safety issues have been conducted. Thesc reviews and investigations have led to safety

improvemcnts in a number of ways: directly, through the issuance and implementation

of Board recommendations; indirectly, through DOE's use of the Board's investigative

reports and other docwnents to correct safety de'ficiencies; and subtly through DO

interaction with Board staff. DOE has fully cooperatcd with Board requests under these

provisions for access to information, personnel, and facilitics, which have functioned

precisely as Congress intendcd. The statute confers subpoena authority to force testimony

or delivery of documents £Tom any person at any place within the Unitcd States.

- 68 -
2. The Recommendation and Implementation Plan ]'rocess

As a result ofthe Board's efforts, safety improvements have been made at defense

nuclear facilities after DOE acceptance and implementation of Board safety

recommendations. Improvements have been made in such fundamental areas as

operational readiness reviews; compliance with safety standards, orders and requirements

at certain facilities; technical training at DOE sites; discipline of operations; the safe

handling of nuclear materials; and radiation protection. However, the pace of progress

has been slow, especially in increasing the number of qualified teclmical DOE personnel.

This progress has been bolstered by cOlTUnunications with DOE officials, such as

the transmittal ofstaff trip reports on technical safety issues. At the Board's December 6,

1994 public hearing, the Secretary testified that the Board had assisted the Department in

identifying and correcting public health and safety deficiencies at defense nuclear

facilities. She elaborated by listing the key areas for which she was most appreciative of

the Board's ovcrsight. They included compliance with DOE safety requirements including

Orders; hiring, retention, education, and training ofDOE's technically-qualified persoJlJlel;

readying facilitics to operate safely, and conduct of operations.

The Board's own assessment of the cxtent of the improvements is presented, in

detail, in the Board's annual repolts to Congress, including Part J of this Report.

Progress, and remaining difficulties, in DOE's development and implementation of

adequate safety standards are analyzed in the next section as a part of the Board's

assessment of efforts to accomplish Congressional objectives concerning safety standards.

a. Analysis of the Pace of DOE Implementation for

Board Recommendations

The primary difficulty thc Board has encountered in the first five years is not with

obtaining requested safety information, identifying significant safety problems requiring

DOE attention, developing recommendations, or having the Secretary of Energy accept

them. Those functions of the Board have been succcssfully executed in accordance with

Congressional objectives. The problem centers on subsequent inaction and failure to

implement recommendations and corrective measures in a timely manner.

- 69 -
Congress clearly anticipated that Board recommendations would ordinarily be

implemented within one year of finalization of the DOE plan2 This Congressional

expectation has not been met, for a variety of reasons which will be analyzed later.

Table I lists each of the Board's recommendations, how long it took to obtain a

response, implementation plan, and closure of the plan.

As can be seen from the Table, only ten sets of the thirty-one sets of Board

recommendations have been closed. Seven were closed because they had been fully

implemented. In the other three instances, delays in implementing the recommendations

led to Board issuance of a new recommendation which incorporated and superseded the

previous reconunendation and addressed broader safety concerns. The remaining twentyone recommendations are in various stages of implementation. For more than half of

these recommendations, it has already been two years or more since an acceptable

implementation plan was submitted.

An analysis of the recommendations closed through full implementation by DOE

is instructive. With one exception, Recommendation 9l-1 on DOE's Safety Standards

Program, all of the fully-implemented recommendations dealt with specific safety

problcms at individual sites. Three involved operational readiness reviews (ORR) at the

Savannah Rivcr Site, Rocky Flats, and WIPP. Only the recommendations dealing with

ORRs were implemented within thc one-year period of reference in the legislation. In

those situations, DOE had strong internal incentives for wanting to comply expeditiously

with Board recommendations; operations scheduled by DOE could not begin or resume

until the ORRs werc adequately completed and safety problems corrected.

Not unexpectedly, the converse of these findings is also truc. The most difficult

recommendations to implement and close address major systematic problems at aU the

sites within the defense nuclear complex, and often involvc questions affecting both

Defense Programs and Environmental Management. See Table 2. Of the

recommendations applying to the entire complex, only Recommendation 91-), which

caused DOE to study the standards program for the complex, has been closed.

A more qualitative analysis also is possible based upon Board judgment ofthe first

five years of operation. Generally speaking, reconunendations issued in 1990, during the

2 If complete implementation of a plan is to take more than one year, the Secretary

of Energy must submit a report to the Conunittees on Armed Services and on

Appropriations of the Senate and the Speaker of the House of Representatives

setting forth "the reasons for the delay and when implementation will be

completed." 42 U.S.C. § 2286d(f)(I).

- 70 -
02115195

Table 1

Elapsed Times to Key Events Associated with Board Recommendations

Rec Subject Issue DOE IPRev 0 Date Closure Days Days to Days Days Elapsed Days Tolal

No Date Accepts Date Board Date to Develop to to to Closure Elapsed

Accepts DOE Plan Revise Close (rssue to Days to

IP Accepl Clese) Dale

90-1 Reador Operator TraininglQuatifications. 2f22I9O 4/10190 7113190 2/7l9t 10127/92 47 94 209 628 978

90-2 Identify stds; assess adequacy: determine implemenlation. 318i90 61t 2190 9117.90 96 97 I t805

90-3 Monitoring and Corrective Actions for selected tanks. 3127.90 5116190 8113190 10112.90 511/92 50 89 60 567 766

90-4 Conduct and content of ORR's for Rocky Flats buildings. 514.90 6I20I9O 11I30I9O 2115191 616194 47 163 77 1207 1494 I

90-5 Systematic Evaluation Program for Rocky Flats activities. 5I18i90 6/13190 10119190 514194 26 128 1293 1734

9Q-<; Develop program for removal of Plutonium in ducts. 615190 7124190 11I30I9O 8117/92 ~9 129 626 1716

90-7 Expansion of Recommendation 90-3 to cover ferrocyanide tanks. 10112.90 1213190 317191 516194 52 94 1156 1587

91-1 Improvement needed in DOE standards development program. 3fl191 5113191 8116/91 10127192 10127192 67 95 438 0 600

91-2 ROMP closure packages and practices. 3127191 5114/91 817191 10127192 10127/92 48 85 447 0 580

91-3 WIPP Readiness Review. 4125191 615191 817191 10127192 10127/92 41 63 447 0 551

91-4 Expansion/clarification of R 90-400 Bldg 559 ORR. 9130191 11/6/91 1118191 2J3I92 511192 37 2 87 88 214

91-5 Savannah River K Reactor Power Limits. 12119191 2/7/92 2/7192 8127/92 417193 50 0 202 223 475

91-6 Need for improved department-Vlide guidance on rad prol.ection. 12119191 1/31/92 6/17192 712193 43 138 380 115~

92-1 Need for ORR on HB line. 5122192 10l2OI92 10l2OI92 10/27/92 10127192 151 0 7 0 158

92-2 Need for improvement in DOE Facility Representative Program. 5128192 7120192 1115192 53 108 993

92-3 Expansion on R 92~1; inadequacy of previous ORR's on HB line. 5129192 9/15192 9121192 10116/92 2I3Ifl3 109 6 25 110 250

92-4 Improve Project Management and Design Contra at Hanford MWTF. 716192 8128192 215193 53 161 954

92-5 Discipline of Operation during period of changes in mission_ 8117192 12116/92 12121192 118193 I 121 5 18 912

92.0 Need for DOE guidance on content, timing and staffing for ORR's. 8126192 10119192 1/19/93 4l29I94 54 92 485 903

92-7 Need for broad improvement in DOE Training/Qualification Programs 9122/92 1/19193 11/4193 1114193 11/4/93 119 289 0 0 408

93-1 Need for consistency betv.oeen Orders for weafXInsJproductioo facils 1121193 4127193 7/19193 7/30193 96 83 11 755

93-2 Need for continued general ptJlp0'5e Department criticaJity program 3/23193 5112193 8110193 9130193 50 90 51 694

93-3 Implement step change in DOE technical staff qualifications 611193 6/23/93 , 114193 1115193 22 134 I 624

93-4 INeed for improved tech mgt and oversight or ERMC's. 6/18193 8/6/93 11/8193 11118193 51 9~ 10 609

93-5 Acce'erate waste characterization program. 7/19193 8/31193 1125/94 3125194 43 147 59 576

93-6 Need to retain access to capabilitylknO\'V!edge of weapons experts 12110193 212194 715194 812194 54 153 28 432

94-1 Expedite remediation of SNM storage/stabilization/disposition 5126194 8/31194 97 I 265

94-2 Comprehensive review or low-level waste program 9/14/94 10128194 44 154

94-3 Apply Sys Eng to deY prog for protection against nat.phenomena 9126194 11118194 53 142

94-4 Raise Conduct of Ops to acceptable level 9127194 11118194 52 141

94-5 Integrate DOE Safety Orders, Rules and other Requirements 12129194 48

'Incremental Days from Preceding Milestone Date

legend:

ERMC Environmental Restoration Management Contract

IP Implementation Plan

MWTF Multi-function Waste Treatment Facility

ORR Operational Readiness Review

ROMP Reactor Operations Management Plan

SNM Special Nuclear Material

Stds Standards

WI?? Waste Isolation Pilot Plant

- 71 -
02115195

Table 2

Elapsed Time to Key Events Associated with Complex-Wide Board Recommendations

Rec No Subject Issue Date Dale Date Closure Days Days!o Days Days Elapsed Days to

Date DOE submit Board Date to Devefop to to Closure (Issue to

Accepts IP Rey Accepts DOE Plan Revise Close Close)

0 IP Accept

90-2 Identify stds; assess adequacy: determine implementation. 31810O 6/12190 9/17190 96 97

91-1 Improvement needed in DOE standards development program. WI91 5113191 8/16191 10i27192 l0i27192 f)l 95 438 0 600

91-6 Need for improved department-wide guidance on rad protection. 12119191 1/31192 6117192 7= 43 138 3BO

92-2 Need for improvement in DOE Facility Representative Program. 5128/92 7120192 1115192 53 108

92-5 Discipline of Operation during period of changes in mission. B117192 12116192 12121192 118193 121 5 18

92-6 Need for DOE guidance on content. timing and staffing for ORR's, 8126192 10119192 1119193 4129/94 54 92 465

92-7 Need for broad improvement in DOE TrainingfQlJafrfication Programs 9I22J92 1119193 11/4193 11/4193 1114193 119 289 0 0 408

93-1 Need for consistency between Orders for weapons/production facils 1/21193 4127193 7119193 7130193 96 83 11

93-2 Need (or continued general purpose Department criticafrty program 3/23/93 5112193 8/10193 9130193 50 90 51

93-3 Implement step change in OOE technical staff qualifICations 611193 6/23/93 1114193 1115193 22 134 I

93-4 Need for improved tech mgt and oversight of ERMC's. 6116193 &16193 1118193 11/18193 51 94 10

94-2 Comprehensive review of low-level waste program 9/14194 10128194 44

94-5 Integrate DOE Safety Orders, Rules and other Requiremenls 12129194

"Incremental Time from Preceding Milestone Date

legend:

ERMC Environmental Restoration Management Con.tract

IP Implementation. Plan

ORR Operational Readiness Review

Stds Standards

- 72 -
first year ofBoard operation, have not been implemented in an expeditious fashion. Only

two have been closed, one by complete implementation. This can be attributed in part

to the learning process that both DOE and the Board went through in the first full year

of Board operation.

Some individual sites have consistently implemented Board recommendations and

safety improvements more rapidly than others. WIPP, the Savannah River Site, and the

Pantex Plant have, in general, done the most expeditious work. On the other hand,

implementation of Board recommendations at the Hanford Site and the National

Laboratories has been exceedingly slow when compared to other sites. Rocky Flats

efforts fall somewhere in between, with implementation of recommendations pertaining

to speci'fic buildings being completed more rapidly than more general recommendations.

Board recommendations on defense nuclear facilities can also be separated into

subject matter categories for purposes ofanalysis: (I) qualification, recruitment, retention,

training, and education of a competent technical workforce in DOE and contractor

programs; (2) development and implementation of adequate safety standards, including

orders, rules, and other requirements; (3) conduct of operations; (4) operational readiness

review prior to resumption of operation; (5) systems engineering; (6) and safe storage and

management of nuclear waste and residues.

An analysis of these subject-matter categories verifies findings stated previously

and reveals a few others. Recommendations on operational readiness reviews are most

successful; the safety improvements sought were implemented in a timely manncr for the

reasons already stated. They are, however, among the most narrow recommendations in

scope. At the other end of the spectrum are recommendations which call for cultural

changes throughout the complex in major safety systems and safety management, such as

the DOE safety standards program or the recruitment, training, and education of technical

persormel. These rccommendations are being implemented far too slowly given their

importance to safety at defcnse nuclear facilities. Similarly, dealing with safe storage,

management, and disposition of nuclear waste and residues has proven to be one of the

most intractable and difficult areas. This fact should come as no surprise to Congress or

to the public. Nuclear waste cleanups are complex technically, and are subjcct to local

political considerations and intense public scrutiny and skepticism.

Examining the recommendations in general, without reference to their subject

matter or scope, one is able to identify those general characteristics of recommendations,

and DOE's responses, which are indicators that implementation will proceed at an

acceptable pacc. Other things being equal: (1) the more specific and concrete the

rccommendation, the better the initial understanding of the problem; (2) DOE responses

developed with true understanding ofthe safety issues involved pave the way for effective

implementation; (3) commitment and involvement by DOE officials at the highcst levels,

and at the levels of implcmentation, are essential to success of the recommendation --

- 73 -
DOE must own the work; (4) clear allocation of responsibilities for implementing the

recommendation, particularly between field and headquarters organizations;

(5) appointment of a single DOE official with strong technical and leadership capability,

who is ultimately responsible and accountablc for completing implementation, aids the

process a great deal; (6) inclusion of reasonable interim milestones and deadlines for

completion of specific recommendations provides incentive and accountability; (7) early

communication between DOE and Board staff at the response preparation stage, coupled

with continued interaction during development of the implementation plan and its

execution are key ingredients for progress; and (8) close monitoring and followup visits

are necessary to assess progress and provide accountability.

b. Causes of the Delay: DOE Actions, Board Actions, Statutory

Defect, or Some Combination of Causes

In the Board's first year of operation, it determined that one of the causes for

delays in implementing recommendations was a DOE practicc of accepting a

recommendation for which there was insufficient understanding and commitment by

officials charged with implementing the recommendation. Therefore, the Board issued

Policy Statement I (55 Fed. Reg. 43,398 (1990»:3

The Act anticipates responses which accept the Board's

recommendations, and responses which reject the Board's

recommendations, in whole or in part. As we have already learned

from DOE's responses to tlle Board's first six recommendations,

however, there is a whole range of possible written rcsponses that

the Board must be prepared to deal with in the future.

;+; * * *

[A]n evasi ve, nonresponsive, anlbiguous, or wlclear response which

is labeled an acceptance by DOE is not adequate. The Board

recognizes that a 'flawed response, if left uncorrected, will only lead

to further problems in the implementation plan.

By issuing Policy Statement I and consistently applying it, the Board reduced the

number of ineffective, ambiguous, and unclear responses. The Board, on occasion, still

encounters the type of equivocal or conditional acceptances that characterized DOE's

earliest responses that led to issuance of Policy Statement I. More frequently, however,

the impediments to expeditious implementation now surface at a subsequent stage in the

recommendation proccss, during dcvelopment of the implementation plan or later.

3 The Policy Statement is reproduced in full in Appendix C.

- 74 -
The Policy Statcment also addresscd the need for implementation plans which

demonstratc commitment to corrective action programs, understanding of the problems

identified by the Board, and, most impOitantly, reasonable schedules for completing the

implementation phase. Some DOE officials balked at development of schcdules with

deadlines for the very reason that they are necessary -- they provide accountability for

completion of the recommended actions. Recommendation 90-2, which asked DOE to

identify, assess for adequacy, and implement effective safety standards, orders, rules, and

requirements, is a case in point. Even though it was the second recommendation issued

by the Board in 1990, development of a schedule for implementation of 90-2 was re 'isted

until November 9, 1994, when revision 5 ofthe implementation plan was submitted to the

Board. Even then, after years of preparatory work, DOE's schedule for compliance with

safety requirements at some sites extends to 1997, and beyond.

Recognizing the delays that characterized some of the Board's most important

recommendations, the Board, in cooperation with the Secretary of Encrgy, sought ways

to prevent U1Ulecessary dclays and to expeditc implementation of recommcndations.

Beginning with Recommendation 93-3, the Board and DOE formally established joint task

groups composed ofsenior staff members to negotiate and develop implementation plans

with interim milestones and deadlines.

c. Possible Additional CO'Tcctive Actions

The measures taken by the Board and DOE have helped the recommendation

process, but have not sccured successful and timely DOE action to implement most

recommendations. The problem ofjust getting DOE to do what it has conunitted to do

in its implementation plans has resisted corrective action. The Board does not have

authority to mandate action by DOE or to penalize inaction. One of the difficulties is that

the causes for the delays may vary from recommendation to recommendation. Moreover,

in most instances, a combination of causcs thwart the implementation of a single

recommendation.

In the first fi ve ycars of operation, the Board has observed the following causes

of delay: (I) thc inherent resistance to change ofa bureaucracy, particularly in response

to external forces; (2) delays caused by DOE or contractor officials because they either

did not tmderstand, or refused to implement the rccolllluendalion in a timely fashion, even

after acceptance by the Secretary of Energy (changing the safety culture of the DOE and

its contractors has been difficult); (3) delegation of responsibility for fulfillment of

commitments made by the Secretary of Energy to DOE contractors or officials who

accord little attention or priority to the issues; (4) lack of sufficient technically-qualified

personnel to execute the Implementation Plan and thus to correct problems; (5) the

intractable natme and complexity ofthe systemic problems being addressed (in such cases,

the expectation in legislation that implementation would be completed iJ1 a year proved

unrealistic); (6) the perceived or actual need for additional resources or time to complete

- 75 -
implementation; and (7) the Board's need to learn how to use all thc tools available to it

to foster accountability and shorten delays.

The final item requires elaboration. The Board's enabling statute is, in the words

of the D.C. Circuit Court of Appeals, "action forcing." For example, the broad powers

given to the Board to obtain safety information necessary to executc its mission have been

mentioned previously. The statute also provides for Board hearings on safety matters of

concern to the Board, 42 U.S.c. § 2286b(a). The Board has learned that it can makc

more effective use of public hcarings to determine the causes for DOE delays in

implementing thc recommendations and ultimately achieving safety improvements. The

Board has found that questioning key DOE and contractor witnesses can providc several

benefits. First, such probing in a formal setting focuses the witness on the need for

obtaining technically supportable and reliable answers. The Board's authority to obtain

information, undcr oath if necessary, is quite compelling.

Such hearings can also provide leverage and public and peer pressure to meet

commitmcnts contained in DOE implementation plans. Thcy serve notice that

unjustifiable delays will not be tolerated by the Board. The Board has lIsed such hearings

to good effect regarding the I-IB-Line ORR, at the Savannah River Site, and safcty

improvements for Buildings 559 and 707 at Rocky Flats. Questioning in public forums

creates an atmosphere of accountability--that the Board intends to use evcry available

vchicle to achieve safety progress. Section IV.B. more fully explores this and othcr

options for achieving progress through better use of the Board's existing tools.

B. FOSTER THE DEVELOPMENT AND IMPLEMENTATION OF

ADEQUATE DOE SAFETY STANDARDS INCLUDING ORDERS,

RULES, AND OTHER REQUIREMENTS

CONGRESSIONAL OBJECTIVE: One of the Board's principal jimctions is to

assist DOE's development and implementation of appropriate and operationally

meaningful safety standards (including orders, regulations and requirements) at defense

nuclearfacililies. Congress challenged the Board and DOE to achieve the safety goal of

comparability between DOE standards and those applied to commercial facilities.

Congress highlighted the importance of this function by listing it first among the

Board's duties. Moreover, it is the only discretc function of the Board which explicitly

contains Congressional illustrations of subject malleI' suitable for recommendations.

Section 312(a)(1) of the Board's Enabling Act provides that the Board shall pcrform the

following functions:

REVIEW AND EVALUATION OF STANDARDS.--The Board

shall review and evaluate the content and implemcntation of the

standards relating to the design, construction, operation, and

- 76 -
decommissioning of defense nuclear facilities ofthc Department of

Energy (including all applicable Dcpartment of Energy orders,

regulations, and requirements) at each Department of Energy

defense nuclear facility. The Board shall rccommend to the

Secretary of Energy those specific measurcs that should be adoptcd

to ensure that public hcalth and safety are adequately protected.

The Board shall include in its recommendations necessaty changes

in the content and implementation of such standards, as well as

matters on which additional data or additional research is needed.

42 U.S.C. § 2286a(a)(I).

The report of the Senate Armed Services Committee on S. 1085 emphasized that

the Board should be instrumental in helping DOE to develop appropriate and operationally

meaningful safety standards and ensuring theil' translation into clear and consistent

requirements for DOE management and contractors. S. Rep. No. 232, 100th Cong, Ist

Sess. 20-21 (1987). Standards, and the insights, analyses, and expertise gained in defining

them, provide the objective basis for measuring DOE and contractor safety performance,

assessing the real safety status of facilities, and determining what must be done to permit

continued safe operation ofthe complex. Congress recognized that adcquate safety orders,

rules, and other requirements wcre necessary in thc interim while a reconfigured and new

complex was structured to replace major elements of the existing increasingly obsolescent

complex. Id. at 10. Similarly, Congress observed that the Board should distinguish

between those instances which cannot be corrected by current safety procedures, and those

where appropriate standards cxist, but are not being adequately implemented. Id. at

24-25.

The basis for the Board's statldards function, and the pnonty given to it by

Congress, arose from the common understanding that DOE's defense nuclear facilities

lacked atl effective standards-bascd program for safety assurance. In the 1940's and

1950's, during the infancy of both commcrcial and defensc applications of atomic cnergy

work procceded using safety measures and programs developed on an ad hoc basis for

specific projects.

During the 1960's, operators of commercial atomic encrgy plants followed the lead

of the Naval Nuclear Propulsion Program and bcgan a strong move toward use of written

standards. This move may also have been dictated in part by the realization that licensing

of commercial facilities imposes a burden of proof which is difficult to satisfy without a

solid reference base of written safety standards.

By the time of the Board's creation in 1988, the lack of an effective standat'dsbased safety program within DOE had been made known to Congress tru'ough a variety

of studies and assessments. At that time, the Department had an assemblage of "orders,"

many of which were out-of-date, poorly drafted, and haphazardly imposed upon operating

-77-
contractors. In its first annual report to Congress, the Board noted thc root causes for

these deficiencics:

The reasons . . . include: lack of understanding among DOE

managers of the importance of standards to safety; resistance by

national laboratories and contractors to the use of standards; and

lack of authority over DOE field offices by appropriate DOE

officers in Headquarters. (Report at 17.)

This situation, and the emphasis of the Board's enabling statute on standards

development and implcmentation, led to the issuance of Recommendation 90-2 shortly

after the Board commenced operations. Recommendation 90-2 was intended to drive the

Department towards an improved standards-based nuelear safety program.

Recommendation 90-2 was followed in early 1991 by Reconunendation 91-1. This

recommendation was spurred by the Board's continued concern. In the recollUnendation,

the Board asked that the Department take a series of actions to place the standards

development program on firmer ground:

• expeditiously issue a formal statement of its overall Nuelear Safety Policy;

• give increased attention to the qualifications and background of managers and

teelmicaJ staff assigned to the development and implementation of standards and

that the numbers of persOlmel suited to this activity be increased conUllensurate

with its importance;

• establish standards program officials access to the highest levels of DOE

managcment;

• critically reexamine the eXlstlllg infrastructure for standards development and

implementation at Headquarters to determine if organizational or managerial

changes are needed to (J) emphasize the priority and importance of standards to

assuring public health and safety; (2) expand the program to facilitate the rapid

development and implementation of standards; and (3) streamline the DOE

approval process for standards; and

• reexamine the corresponding organizational units at DOE's principal Operations

and Field Offices and DOE contractor organizations to determine if those

organizations' standards infrastructure, responsibilities and resources would also

benefit from changes to reflect improvements at Headquarters which strengthen

and expedite standards development and implementation.

- 78 -
DOE was also requested to review a report regarding its standards prepared by the

MITRE Corporation on behalf ofthe Board, and to expedite the issuance of revised safety

orders and directives while formal rules were being developcd and issued.

1. P,"ogress in Developing and Implementing a Requirements-Based

Safety Program DlII"ing 1991-1994

Progress in implementing these recommendations was, from the start, sporadic and

di organized. In its 1992 alUlUal report, thc Board was forced to conclude its review of

90-2 progress on this pessimistic note:

Having reviewed the (revised 90-2 implcmentation) plan, the Board

has informcd DOE that thc plan and its implementation were

unacceptable for reasons to bc identified in a January letter.

Tllis letter, issued January 24, 1992, informed DOE that its revised 90-2 implementation

plan failed in numerous respects to meet the Board's publishcd criteria for an acceptable

implementation plan (Board Policy Statement I). Most importantly, the plan did not

provide a schedule for completion ofidentification of adequate safety standards (including

DOE Orders, rules, and other requirements) at defense nuclear facilities and the plan

lacked deadlines for compliance with all safety requirements.

The Board's 1993 report to Congress indicated that measurable progress was made

by DOE during 1992 after rejection of the revised implementation plan. That progress

related primarily to specific facilities identifying applicable DOE Orders and ensuring

compliance as a palt of the operational readiness rcview process. Progress in developing

a complex-wide plan for implementation remained slow. Unfortunately, as explained by

the Board in the 1994 annual report, revision 4 to the plan also had to be rejected:

Major elements of DOE's Revision 4 to the Implementation Plan

and, in particular, the Plan's compliance schedules were rejected by

the Board. . .. Some schedules for completing identification,

assessments for adequacy, and compliance with standards ... were

either lax, or absent from the plan altogether ... a single, coherent

DOE program for development and use of safety requirements as

a fundamental base for self-regulation has not emerged. (Report

at 6.)

The Secretary of Energy indicated her own dissatisfaction in not being able to trigger

measurable progress in developing an adequate plan after four years. By memorandum

of February 9, 1994, she directed her staff to correct the problem, noting that even the

process of identifying all applicable standards was not complete, let alone meeting the

imperative of actually complying with safety requirements on the books. Nevertheless,

- 79 -
it was not until November 9, 1994, that DOE delivered an acceptable implementation plan

(Revision 5) for Recommendation 90-2.

In its most recent recommendation, 94-5, the Board turned to a series of potential

problems generated by DOE's transfer of safety requirements from Orders to rules

through formal rulemaking. The Board's main concerns were that in this transition

process, ongoing safety upgrade programs would be substantially delayed to await

completion of the rulemaking process, and important safety guidance and good practices

would be lost. The Board also cited several recent DOE internal directives indicating that

the transition process and the means by which all necessary requirements would be

integrated were not well understood throughout the complex. For these reasons, the Board

recommended on December 29, 1994, that DOE take a number of actions to ensure that

(I) the Department's Safety Management Program is well understood by key technical and

contract personnel, (2) the transition to rules is accomplished without loss of momentum

on safety improvements and with proper coordination and integration of implementation

plans, (3) a complete set of requirements needed for safe operations emerges from a

combination of rules, orders, standards, and other directives, and (4) DOE contracts

contain appropriate compliance provisions to ensure that the requirements-based safety

management program is developed and imposed throughout the complex. The response

by the Secretary is due on February 21, 1995.

2. CurTent Status

Five years after issuance of Recommendation 90-2, several conclusions can be

drawn: (1) both Secretary Watkins and Secretary O'Leary have committed the

Department to a requirements-based safety program; (2) DOE has made some progress

in moving towards a requirements-based safety program; (3) unrelenting attention by the

Board caused DOE to achieve an adequate level of compliance with standards before

restarting several facilities shut down for safety reasons; (4) in response to several Board

recommendations, DOE has now developed and issued a nuclear safety Order Oll

operational readiness which, when properly used, is an effective tool for ensuring adequate

protection of public health and safety prior to startup or restart of nuclear facilities; (5) a

great deal of work remains to be done, both to erect a complete, adequate set of safety

requirements for DOE's diverse operations and to implement these requirements at the

tield level; (6) the pace of forward progress may be slowed as a result of DOE efforts to

make the transition from requirements now contained in safety Orders to requirements

promulgated in rulemaking; and (7) resistance to requirements-based safety management

continues to exist among contractors and within the Department itself.

The magnitude and complexity of the task ahead is indicated by the Department's

own schedules for implementation of Recommendation 90-2. Revision 5 of the plan

demonstrates that the task of just identifying requirements will take years for some

facilities. The Board and DOE have identified the fifty-two existing DOE Orders

- 80 -
containing requirements considered essential to nuclear safety. Many of those havc been

revised and improved in the last few years. Scc Appendix D. Major rulemakings have

bcen completed on radiation protection and quality assurancc. Site requirement

identification documents (S/RIDs) are being developed pursuant to the 90-2

implementation plan and will ultimatcly list all of the mandatory safety requirements

applying to a particular defense nuclear sitc and facilities located there. SIRIDs are being

developed and inlplemented throughout the complex, although not on an expedited basis.

A major program led by EH to assess, consolidate, improve, and implcment DOE

requirements ranging from Depaliment-wide policies to narrow technical standards was

only started in 1993 and will require years to complete. Defining applicable requirements

at defense nuclear facilities will not be sufficient in itself; safety assurance requires a

demonstration of actual compliance. Some Defense Program facilities indicate that actual

compliance assessments (so-called "Phase II" assessments) will extend to the year 2000

and beyond at many facilities.

In 1995 and beyond, the Department's progress toward a requirements-based

nuclcar safety program at defense nuclcar facilities needs to continue and to accelerate.

Standards development requires a technically competent, dedicated headquarters

organization, while standards implementation requires similarly competent organization

at hcadquarters, the field offices, and the contractors, plus an aggressive oversight,

inspection and enforcement program. These tasks carmot be completed absent continued

commitment by DOE management at the top level. In its responses to Recommendations

90-2 and 91-1, the Department repeatedly has promised to move forward on both fronts.

Compliance with standards at defense nuclear facilities has been driven almost

entirely by the Board's recommendations and its refusal to accept poor performance. The

concept of ensuring safety through compliance with standards is not yet firmly embedded

in the Department or its contractors, and will require time to complete. A requirementsbascd process is still regarded within the DOE structure as an "add-on" to other tasks

perceivcd as more important.

Nowhcre has the transition to a requirements-ba ed approach been more difficult

than at DOE's national laboratories. Their resistance stems from the belief, not without

some basis, that the constraints cstablished in many DOE Orders, while appropriate for

production facilities, are not appropriate for research and development activities. The

Board has taken note of this concern, and its potential impact on the flexibility needed for

creative defcnse-related nuclear research. The Board has initiated a new review of the

presently-implemented safety management strategies at the laboratories, focusing on how

tile elements of those strategies compare with those for other operations of similar

complexity and hazard level. During this review, the Board will evaluate whether the

laboratories' safety management systems are equivalent to the intent of the DOE safety

standards, even though different in detail.

- 81 -
C. RAISE THE TECHNICAL EXPERTISE AND VIGOR OF DOE

SUBSTANTIALLY, AND HELP DEVELOP AND MONITOR DOE'S

INTERNAL ENVIRONMENT, SAFETY AND HEALTH ORGANIZATION

CONGRESSIONA L MANDATE: The lack of a sufficient number oftechnically

qualified program and oversight officials underlies all ofthe health and safety problems

at defense nuclear facilities. Recognizing this, Congress, in the report of the Senate

Armed Services Committee on S. 1085, stated that the Board is expected to raise the

technical expertise for the Department substantially, to assist and monitor the continued

development of DOE's internal EH organization, and to provide independent advice to

the Secretary.

AppLicable provisions of the Board's enabling statute implicitly require that the

Board address the technical competence of DOE's personnel. For example, the Board is

required to (1) review the content and implementation of safety standards and

(2) investigate events or practices which either adversely affect or have the potential of

adversely affecting public health or safety. 42 U.S.C. § 2286a(a).

1. Board Actions

In each of the first four arll1ual reports, the Board recognized that the most

important and far-reaching problem affecting the safety of DOE defense nuclear facilities

is the difficulty in attracting and retaining personnel who are adequately qualified to

provide the management, direction, and guidance essential for safe operation of DOE

defense nuclear facilities. It remains the most critical problem today. In its fourth annual

report, the Board summarized both the problem and its causes.

The technical capabilities of DOE and contractor personnel have

been an ongoing concern of both the Congress and the Board for

a number of years. The United States Senate Report accompanying

the Board's enabling legislation states that the "Board is expected

to raise the technical expertise of the Department

substantially ...." The health and safety of the public and

workers rest on a properly trained workforce accomplishing tasks

in a formal, deliberate fashion in accordance with reviewed and

approved procedures. Implementation of effective training and

qualification programs and disciplined conduct of operations are

essential to establishing a technically competent work force. As a

result, many ofthe Board's recommendations have stressed training

and conduct of operations.

* * * *

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Nevertheless, in recent years there has been little noticeable

improvement in the scientific and technical expertise in the defense

nuclear facilities complex . . .. Unlike other federal agencies

which rely upon technical competency, such as the Nuelear

Regulatory Conllllission, the National Science Foundation, and the

Board, DOE does not have excepted appointment authority. It is

seriously encumbered by antiquated Civil Service restrictions that

discourage bright, tecllllically-qualified persons from being initially

hired and subsequently promoted to positions of responsibility.

The lack of significant numbers of qualified technical personnel in

DOE's oversight and line organizations is a serious issue. In some

instances, the Board has provided a level of technical review for

DOE that goes beyond the traditional bounds of external oversight.

To address the need for technically-qualified personnel within DOE, the Board

issued Recommendation 93-3. Recommendation 93-3 urged DOE to take dramatic action

to attract and retain scientific and technical persOlU1el of exceptional qualities. The Board

urged that DOE take the following initiatives at Headquarters and in the field.

(I) Establish the attraction and retention of scientific and technical personnel

of exceptional qualities as a primary agency-wide goal.

(2) Take the following specific actions in the interest of achieving this goal:

a. Seek excepted appointment authority for a selected number of key

positions for engineering and scientific personnel in DOE

prograllU11atic offices, in other line units, and in the oversight units

responsible for the defense nuclear complex; and

b. Establish a technical personnel manager within the Office of the

Secretary to coordinate recruitment, classification, training, and

qualification programs for technical personnel in defense nuclear

programs.

(3) Develop a broad-based DOE program for improving qualification,

education, and training of technical persormel.

Finally, the recommendation called for baseline and continuing assessments of

DOE's technical personnel initiatives by groups both internal and external to DOE. The

Secretary of Energy accepted Recommendation 93-3 on July 23, 1993.

- 83 •
Much earlier, in 1990, Reconunendation 90-1, the first formal recollllllendation by

the Board, called for implementation of effectivc training and qualification at the

K-Reactor at the Savannah River Site. DOE action resulted in a successful training

program. During 1993, the staff of the Replacement Tritium Facility at the Savamlah

River Site uscd the lessons learned at the K-Reactor and subsequently became the first

DOE facility to have a fully accredited teclmical training program. However, DOE has

not extended this proven approach to other defense nuclcar facilities at the Savannah

Rivcr Site or to facilities at othcr sites.

Assessments in 1992 at the Hanford Site, the Pantex Plant, non-reactor facilities

at the Savannah River Site, the Y-12 Plant at the Oak Ridge Reservation, and the Rocky

Flats Environmental Technology Site clearly demonstrated the need to strengthen training

oftechnical personnel. As a result, Recommendation 92-7 proposed that DOE take strong

action to improve qualification and training at those sites. DOE's initial [mplementation

Plan, submitted in Junc 1993, was determined by the Board to be unacceptable as a means

for achicving the needcd improvements. DOE did not correct the deficiencics in tlils

Implementation Plan until the initiatives of Recommendation 92-7 were cmbraced by the

even broader-based Board Recommendation 93-3. To address several overlapping elements

of Recollllllendations 92-7 and Reconullendation 93-3, the Secrctary proposed and the

Board accepted that a single Implementation Plan bc developed for iliese two related

recommendations. DOE submitted a combined Implementation Plan that was accepted

by the Board on November 5, 1993. All actions covered by the Implementation Plan are

scheduled to be completed by December 1995.

Unique talents are now being lost from DOE and its weapons complex through

down-sizing. This problem is pmticularly acute for the weapons laboratories and the

facilities involved in the assembly, disassembly, and testing of weapons, wherc budget

pressures and other constraints are leading to the severe erosion of the talent pools upon

which much of the weapons progrmn has depended. In Recollllllendation 93-6, issued in

December 1993, ilie Board urged DOE to:

(I) develop a formal program to identify the skills and knowledge needed to

develop safe weapons dismantlement and modification procedures for all

remaining nuclear weapons, and to safely conduct nuclear testing;

(2) institute a practice whereby personnel losses from the complex are

reviewed to assess their impact on required safety-related capabilities;

(3) develop a means to ensure continucd access to necessary capabilities

through the use of personnel retention, new hires and consulting

arrangements, progrmns to document ilie knowledge of higWy expert

persOlmel, and the development of detailed procedures to guide people who

will follow;

- 84 -
(4) develop an integrated program to maintain nuclear weapons testing

expertise at the Nevada Test Site (NTS); and

(5) reevaluate the traditional reliance on administrative controls to ensure

nuclear explosive safety at NTS, given the ongoing loss of personnel.

The Secretary of Energy accepted Recommendation 93-6 on February 2, 1994, and

submitted an Implementation Plan to the Board on July 5, 1994. The Board accepted the

Implementation Plan on August 2, 1994. All programs necessary for the continuing

implementation ofthe individual recommendations are scheduled to be in place by March

1995.

The capability to conduct criticality experiments is an exan1ple of the technical

expertise which must be maintained. In Recommendation 93-2, issued on March 23,

1993, the Board recommended that DOE:

(I) retain its program of general purpose criticality experiments,

(2) direct the program along the lines satisfying the objectives of improving

the information base underlying prediction of criticality, and serving in the

education of criticality engineers, and

(3) using the results and resources of the program in ongoing departmental

programs where nuclear criticality would be an important concern.

The Secretary of Energy accepted Recommendation 93-2 on May 13, 1993, and submitted

an Implementation Plan to the Board on August 10, 1993. The Board accepted the

Implementation Plan for Recommendation 93-2 on September 30, 1993.

2. Stntus of DOE Actions to Dnte on Technicnl Personnel Issucs

DOE made notable progress responding to Recommendation 93-3 by obtaining

additional excepted appointment authority as recommended by the Board. Section 3163

of the National Defense Authorization Act for Fiscal Year 1995, Pub. 1. 103-337,

authorized DOE to establish up to 200 additional excepted service positions for scientific,

engineering, and technical personnel whose duties will relate to safety at defense nuclear

facilities.' Obtaining this legislative change took many months and the combined efforts

of the Board and DOE. Appropriate pay levels may be set, and individuals may be hired

to fill such positions, without use of the procedural steps which encumber civil service.

4 This addition of 200 raised the total number of excepted service positions at DOE

to 400.

- 85 -
xcepted service anticipates all of the essential features of the National Performance

Review (NPR), is fully consistent with the goals and specific recruitment programs called

for in the NPR, and will easily dovetail into the Administration's program if NPR

legislation is eventually passed.

DOE designated a Technical Personnel Program Coordinator and recruited an

cxcellent group of technical interns. DOE attempted to improve the Department's ability

to recruit and retain technically competcnt personnel by issuing an Administrative

Flexibilities Handbook, developing new guidance related to career planning, and

developing a qualification program for technical personnel. Contractor training and

quali fication have improved, as shown by more timcly approval of the contractors'

Training rmplementation Matrices and improvements in the training of operators at

facilitics such as the Savannah River Site Replacement Tritium Facility and at the Pantex

Plant. Additional effort is requircd to extend these success to facilities across the

complex.

On the other hand, DOE has made much less progress in actually hiring qualified

technical persOlmel for key Office ofDefense Programs (01') line and oversight positions.

Thc hard-won authority to hire technical persOlmel under excepted appointmcnts has been

little used to date. Failure to immediately begin using its excepted appointment authority

is one of the central obstacles to developing a technically qualified staff at DOE. The

Offices of Environmental Management (EM) and EnvirOlm1ent, Safety and Health (EH)

have recruitcd and hired teciUlical personnel, although without full consideration of thc

goals and standards called for by Recommendation 93-3. Additionally, it is unclear what

percentage of the new hires will be devoted to technical positions involved with nuclear

safety. DOE officials initially intended that excepted service positions would not be

allocated to DP. At the public hearing on December 6, 1994, the Secretary of Energy and

other high-level DOE officials told the Board that additional exccpted service positions

would be allocatcd to DP organizations. The exact munber remains in question. A

detailed cvaluation is to be performed by DOE to address the numbers of staff required

as well as the qualifications and competencies that staff members must possess. In

describing this review, the Under Secretary of Energy stated: "To the best of my

knowledge, the Defense Programs staffing evaluation is unique in the history of this

Department." The Board will follow the progress of this vital study closely.

As a part of a broad-based program for improving the qualification of its technical

persorl11el, DOE is now developing and implementing technical qualification standards for

DOE employees. However, draft teclmical persOlmel qualification standards that have

been developed by DOE and reviewed by the Board and its staff lack the rigor necessary

to cause a significant upgrade in the technical competence of DOE. A baseline external

review of DOE's technical personnel initiatives has been completed by the National

Acadcmy of Public Administration (NAPA). Unfortunately, the rcview fell far short of

- 86 -
the plenary review anticipated by the recommendation since it was restricted to DOE

headquarters and did not include field opcrations.

While preparing the Implementation Plan for Recommendation 93-3, DOE officials

stated a preferencc for curing technical deficiencies by education and training of the

existing workforce as opposed to hiring new talent. This preference appears to be even

stronger due to mandated pcrsonnel reductions, but progress on training and education

lags. DOE's education and training efforts reviewed by the Board and its staff, however,

are off-target. Thcy are directed towards a superficial level of knowledge rather than a

fundamental understanding of nuclear systems and processes. Full implementation of the

Board's recommendations to upgrade DOE's level of teclmical competence is in jeopardy

due to a lack of buy-in by DOE line management.

To maintain the capability to perform criticality experiments as recommendcd by

Recommendation 93-2, DOE has performed a systems analysis to identify the necessary

resources and pcrsOlmel needs. In thc limited area of criticality experiments, DOE has

identified the resources and funding necessary to support cunent and anticipated

requirements for conducting critical experiments and for training criticality experts and

has established the Nuclear Criticality Experiments Steering Committee (NCESC) as a

standing conunittee to oversee and coordinate the DOE criticality experimcnts program.

The NCESC is addressing key issucs regarding nuclear criticality experiment capabilitics,

identifying resource requirements, and justifying necessary funding.

Reconunendation 93-6 addressed retention of weapons-related technical expertise,

particularly at the national weapon laboratories, in a down-sized weapons complex. DOE

prepared the Implementation Plan to complement thc Stockpile Stewardship Strategy and

the Stockpile Management Plan, which it also was developing. The Implementation Plan

provides for a formal Intcgrated Safety Skills and Knowledge Platform (ISSKP) to

identify the skills and knowledge needed to disassemble, modify, and test nuclear

weapons. That platform will identify and record needed skills and knowledge. DOE

intends to integrate the IS$KP with weapons testing and disassembly procedures, and

plans to implement a program to docmnent skills and knowledge by March 1995. DOE

also has initiatcd a review of administrative controls and engineered safcguards which

ensure nuclear explosive safety at the Nevada Test Site. DOE plans to validatc and

update weapons disassembly procedures by September 1995. DOE also committcd to

review the engineered safeguards and administrative controls for thc Nevada Test Site and

incorporate any necessary changes by February 1995.

By failing to satisfactorily complete many of the near-tcrm initiatives identified

in the Recommendation 93-6 Implementation Plan, DOE has placed the overall schedule

in jeopardy. DOE has yct to clearly identify the critical functional areas that support safe

dismantlement or modification procedures for weapons or all of the key positions critical

- 87 -
to safe testing operations. DOE also has failed to demonstrate a methodology or

structured interview process to capture and preserve usable information.

However, DOE's ability to capture and preserve expertise as identified in

Recommendation 93-6 has been strengthened by the recently-enacted scction 3131 of the

National Defensc Authorization Act for Fiscal Year 1995. This section authorizes DOE

to conduct a stockpile stewardship recruitment and training program at the national

laboratories and to establish a "retiree corps" of retired scientists who have expertise in

nuclear weapons research and developmcnt.

DP is challenged to increase the number of well-qualified technical personnel at

a time when DP's organization staffing level is bcing decreased. Current staffing levels,

as well as the skill mix of DOE, laboratory and contractor pcrsonnel, appear to be

inadequate to meet the requirements of the existing defense nuclear safety program.

These deficiencies have been highlighted by the Board on several occasions, but havc not

been corrected. Most notable is the lack of sufficicnt numbers of trained safety analysis

personnel. This contributes to Safety Analysis Reports that are incomplete and

unapproved, Nuclear Explosive Safety Studies (NESS) that are out of date and

tmapproved, and Nuclear Explosive Risk Assessments, initially required in 1990 for every

NESS, that are not yet fully implemented.

Thc DOE Implementation Plan for Reconunendation 93-6 committed to an

immediate review of the current status of DP staffing to identify the need for additional,

technically competent personnel. TillS review and other near-term illltiatives identified

in the Implementation Plan have not been completed, thereby jeopardizing thc goal of

maintaining access to nuclear weapons expertise. DP orgalllzational elements that are

focused on the safe operation of thc defense nuclear complex need to be supplemented,

not reduced, as currently planned.

DOE has made limited progress in response to Board recommendations in the areas

of training and worker qualification. Actions in response to the Board's first formal

rccommendation, Recommendation 90-1, which called for an effective trailllng and

qualification program at the Savannah River Site K-Reactor, resulted in a successful

training program. Lessons learned at thc K-Reactor were of significant use during the

startup of the Replacement Tritium Facility at Savannah River. DOE has not, however,

applied these lessons to other defense nuclear facilities. DOE's failure to extend the

training and qualification improvements to othcr sites resulted in the Board issuing

Recommendation 92-7 and the even broader-based Reconunendation 93-3. The

Implementation Plan for Recommendation 93-3, which was approved in November 1993,

embraccd the initiatives of Recommendation 92-7, and calls for the completion of all

actions by December 1995. Nevertheless, some DOE complex-wide training and worker

qualification improvemcnts are not currently scheduled to be fully implemented until the

end of 1998.

- 88 -
Other problems in the recruitment, retention, and training of personnel persist

throughout the Department. DOE has hired few ncw managers either at the mid-level or

at more senior levels of management, where the initiatives of RecOlrunendation 93-3 can

have the most effect. Further, no consideration has been given to using the Technical

Qualification Standards being developed under this recommcndation as an integral part

of the hiring process. There is littlc evidence that senior managers at DP, EM, and EH

have matched the efforts of the Office of Human Resources (HR) to implement the

precepts of Recommendation 93-3 to improve their organizations. Personal involvement

by the Assistant Secretaries is essential to full implementation ofthe recommendation, but

has yet to bc fully realized.

D. REVIEW DOE SAFETY MANAGEMENT, OVERSIGHT, AND

ENFORCEMENT PROGRAMS

CONGRESSiONAL MANDATE: Recognizing the paramount importance ofDOE's

own safety programs, Congress required the Board to oversee, monitor, and assist DOE's

internal management and oversight ofsafety at defense nuclearfacilities.

Defense nuclear facilities are maintaincd and operated by contractors under the

direction, guidance, and ovcrsight of federal employees of the DOE. DOE has over the

years developed those requirements the Department considered necessary to assure public

hcalth and safety, protection of property, and national defense and security. These

requirements have been promulgated in a variety of documents, referred to as "safety

standards" by the Board's enabling statute. Current DOE contracts list or reference those

DOE safety orders that are applicable to the facilities covered by the contract. The DOE

is cun·ently in the process of transitioning from an Order system to ru.les as the means for

promulgating and implementing these nuclear safety requirements.

DOE's move toward use of a standards-based safety management program is

consistent with both national and inte1'l1ational practices for assuring nuclear safety. While

the basic approach is sound, DOE's implementation, oversight of contractor compliance

with, and enforcement ofits own standards has not been effectively executed. This matter

is discussed in sections that follow.

.I. The Primacy of Line Management Responsibility for Safety

The Board and DOE have often recounted the principle that line management bears

the primary responsibility for safe operation of dcfense nuclear facilities. So long as

defense nuclear facilities remain the responsibility of DOE, there will be need for strong

DOE line management. No amount of oversight, whether internal or external, can

compensate for a line management which is neither dedicated to safety nor competent to

achieve it.

- 89 -
This principle has been enunciatcd by both the previous and current Secretaries of

Energy. In SEN-6-89, issued May 19, 1989, Secretary Watkins stated:

Establishment of direct line responsibility is essential to assure the

successful accomplislunent of major DOE programs, including the

Savannah River restart effort.

:+: :+: .. *

In furtherance of the philosophy that the Department of Energy

consists of line organizations fully responsible for their own

activities, it is my intent that operational programs and activities

related to environmental protection, radiation and reactor safety,

and worker and public health and safety be included in those

responsibilities.

Secretary O'Leary reiterated this precept in a December 2, 1994 memorandum to

Secretarial Officers and Managers of Field Elements:

This memorandum reemphasizes my commitment to strengthening

the Depmtment's nuclear safety program through a comprehensive

management program that ensures full accountability for safety.

The Department's nuclear safety program is based on five guiding

principles:

Line management is responsible for safety;

Comprehensive requirements are in place;

Competence is commensurate with responsibilities;

Oversight is strong and independent; and

Enforcement is precise, meaningful, and swift.

The Department must accelerate improvement in the effectiveness and competence of line

management within DOE and contractor organizations, irrespective of whether oversight

is accomplished internally, by external oversight similar to the Board's, or by an outside

regulator.

2. DOE Oversight of Nuclear Safety

The Board was created after Congress perceived that DOE had failed to provide

necessary line, oversight, and enforcement mechanisms to adequately protect public health

and safety at defense nuclear facilities. A review of DOE's oversight and enforcement

programs was necessary to fulfill several aspects of the requirements for the Fifth Annual

- 90 -
Report. First, Congress mandated that the Board review the content and implementation

ofDOE safety standards. Line management has primary responsibility for implcmentation

of such standards. Internal oversight by DOE serves as the second ticr ofsafety defense

in the event line management fails to effectively uncover and correct problems in safety

systems and practices. Enforcement mechanisms, either by contract implementation,

penalties under Price-Andcrson Act amendments, or use of the contractor fee award

system, are available by DOE when contractor compliance with safcty requirements is not

forthcoming.

As the Board reported to Congress in several annual reports, DOE has not

effectivcly used its internal oversight tools. Too often the Board has uncovered safety

problems which should have been discovered and resolved by DOE. Thus, the

effectiveness of DO oversight and enforcement is directly related to future Board

oversight operations. Moreover, an assessment of DOE's oversight and enforcement

programs is germane to the evaluation of options for external oversight or regulation of

the complex.

The principles of effective nuclear safety oversight have been identified long ago

by organizations such as the International Atomic Energy Agency, the Institute for

Nuclear Power Operations (lNPO), NRC, Naval Reactors, and others.

• Independence of line managemcnt and oversight

• Technical expertise of line management and oversight organizations

• Access to facilities as needed and ability to perform reviews

• Clear authority to require the line organization to address the ovcrsight findings

and recommendations

• A system to provide public access to thc organization's findings and

recommendations

The first of these elements, independence, is universally recognized as a sine qua

non of any management system designed to ensnre safety by separation of oversight from

operational responsibilities. See,~, Basic Safety Principles for Nuclear Power Plants,

International Atomic Energy Agency Safety Series No. 7S-INSAG-3 (1988); NRC

Regulation 10 C.F.R. Part SO, Appendix B, "Quality Assurance"; A Safety Assessment of

Department of Energy Nuclear Reactors, DOE/US-ODDS (198t). The Board and its staff

have analyzed DOE internal oversight programs using these key principles.

The Board's creation by Congress was stimulated in part by DOE's inability to

construct two key elements of safety assurance: (I) a competent line management

- 91 -
organization dedicated to safety, and (2) a strong, independent safety oversight

organization opcrating as a check online management. In 1989, then Secretary of Energy

Admiral Watkins cmphasized both of these clcments in SEN-II-89, which was

acknowledged and quoted by the Board in its 1991 Annual Report at pagc 30:

Addressing the issue of DOE accountability for such matters as

health and safety, the Secretary noted that "the very large majority

of our work in the field is actually carricd out by contractors."

"But," he continued, "this fact in no way relieves DOE managers

of their governlllental responsibilitics to assure that contractors'

primary duties are performed in accordance with expected high

standards of professional excellence." This acknowledgment of

DOE responsibility is offundamental importance to assuring health

and safety.

* * *of!

Another objective ofthe Secrctary wa to "[s]trengthen independent

internal oversight rcsponsibilities within Environment, Safety and

Health (EH) and other designated offices ... as required to monitor

effectiveness ofDOE management in execution of policies set fOlth

by DOE, particularly in areas of envirOlullent, safety, health, and

security." (Annual Report. Emphasis in original.)

During the four-year period since the 1991 report, DOE's progress in improving the

competence and safety focus of line management and in constructing a vigorous internal

oversight program has been slow.

One major disruption in the proccss of improvement was unavoidable: a change

of Prcsidential administrations. The appointment of a new Secretary of Energy in 1992,

with a very different background and perspective from the outgoing Secretary, resulted

in a period of llllceitainty within DOE followed by major changes in the Department's

line and oversight structure. The Office of Nuclear Safety (ONS), created by Secretary

Watkins as an independent safety oversight group reporting directly to the Office of the

Secretary, was transferred to the Assistant Sccretary for Environment, Safety and Health

(EH).

In 1994, EH, which had absorbed ONS, was reorganized to provide two basic

functions: technical assistance to line management and oversight. The details of that

reorganization were finalized and announced on December 5, 1994. Therefore, the Board

is unable to assess fully how the new oversight office will function. For example, it is,

as yet, unclear what lcvel of staffing will be provided to independent internal oversight

and enforcement, traditional roles assigned to EH, compared with the teclmical assistance

- 92 -
function. A singlc office reporting to the Assistant Secretary for Eli has been given

complex-wide oversight duties. Enforccment as a compliance tool still has not been used

by DOE. Finally, DOE nceds to accelerate efforts in acquiring a cadre of well-qualified

safety professionals in both linc management and oversight positions to assure safety.

The latest DOE reorganization of EH places oversight in an independcnt unit

within Eli. The Board issued on May 6, 1994, a letter to DOE requesting detailed

information on the reorganization. The Department's response was provided to the Board

on October 21, 1994. During the past several months, the Board has been studying tlus

response and is tracking DOE's implementation of the organizational structure described

in it. Additional information has been received recently in the form of DOE's report to

Congress regarding its organizational structure and programs for internal oversight,

pursuant to the Cohen Amendment, in Section 3163, Pub. L. 103-337, National Defense

Authorization Act for fiscal Year 1995.

In the Board's view, it remains an open question whether strong, independent

safety oversight and enforcement programs will emerge from the reorganization. The new

structure for oversight in Eli is workable provided that (l) the new Office of Oversight

is adequatcly staffed with technically qualified personnel, (2) the Office's independence

is maintained, and (3) its findings receive full attention by line management. The

independence and capability of the enforcement unit within EH remain to be

demonstrated. Both the Secretary and the Assistant Secretary for EH have publicly stated

that DOE welcomes external oversight of health and safety matters.

As the Board has stated in several of its past reports, DOE's failure to provide

effective internal independent oversight has caused tile Board to substitute its own

resources for those of DOE in many cases. Instead of being the last line of safety

defense, as external oversight should be, the Board and its staff often substitute for

internal oversight.

3. Lcgal and Organizational Bases for Ovel'sight and Enfol'ccment

The Board analyzed specific aspects of DOE's currcnt capability to internally

oversee and enforce compliance with safety standards at defense nuclear facilities. A

broad, common sense definition of enforcement -- insisting that thc contractor achieve

compliance with safety requirements -- was used for the analysis, rather than only looking

at the Price-Anderson penalty process. The analysis reviewed the Eli organization and

infrastructure; legal authority to conduct meaningful oversight and enforcement, including

statutory provisions, regulations, orders, and contract provisions impacting nuclear safety;

and DOE activities which demonstrate commitment to internal oversight and cnforcement.

The Board concluded that the Atomic Energy Act provides for an internal DOE

oversight and enforcement program of nuclear safcty in the defense complex. However,

- 93 -
DOE has not effectively implemented that statutory authority. DOE has been slow to

develop or implement thc site and facility-specific requiremcnts which serve as the

measuring stick for compliance.

a. Statutory Authol'ity

DOE has always held statutory authority to oversee its contractors and enforce

compliance with safety requirements at defense nuclear facilities. The Atomic Energy Act

01'1954 provided that the Atomic Energy Conunission (and its successor agencies) would

"establish ... standards and instructions ... to protect health or to minimize danger to

life or property." 42 U.S.C. § 2201(b). Prior to the Price-Anderson Act Amendments to

thc Atomic Energy Act in 1988, the principal tools available to DOE for achieving these

purposes were DOE safety orders, which could be imposed by contract requirements.

DOE also possessed the authority to issue and enforce legally binding regulations, after

public notice and comment, and to issue administrative orders of compliance with safety

requirements under the Atomic Energy Act and thc Administrative Procedure Act. That

authority was elaborated upon in section 501 of the Department of Energy Organization

Act of 1977. 42 U.S.C. § 7191. In recent history DO has not effectively invoked these

processes and lcgal mandates to require compliance with existing safety standards.

Briefly, the Price-Anderson Act Amendments of 1988 authorized DOE to impose

civil penalties upon its indemnified contractors (other thannot-for-profit contractors such

as universities).5 Civil penalties can be levied only for those violations of nuclear safety

regulations and orders which have been issued according to the requirements of the

Administrative Procedure Act. For regulations this means (at a minimum) notice and

oppOitunity to comment by the public and regulated parties; for orders, it means that after

formal issuance of the order, the contractor has the right to requcst an adjudicatory

hearing.

The Department began work on procedural and substantive rules to carry out the

Price-Anderson mandate in 1989. The procedural rule containing the Department's

enforcement policy and penalty procedures for Pricc-Anderson were issued in final form

on August 17, 1993.6 To date, two final substantive nuclear safety rules have been

issued: Occupational Radiation Protection, on December 14, 1993,' and Quality

Atomic Energy Act of 1954, as amended, Scction 234A, 42 U.S.C. § 2282a.

•

,

10 C.F.R. Part 820.

10 C.F.R. Part 835.

- 94 -
Assurance on April 5, 1994.' The radiation protection regulation by its own terms delays

enforcement for two years. Several other rules have becn noticed for commcnt, including

Nuclear Safety Management, published in draft on December 9, 1991, and Radiation

Protcction of the Public and the nvironment, published in draft on March 25, 19939

Others have been noticed or are scheduled to be noticed shortly. In the meantime, the

immediate past and present Secretarics of Energy have stated that current DOE safety

ordcrs apply until compliance with the rules is achieved.

b. Organizational Issues

The Department recognized the nccessity of placing ovcrsight of DOE field offices

and contractors in the hands of DOE employees outside of line management. In 1990,

DOE organized an internal oversight and enforcement division within the Office of

Nuclear Safety, headed by a former NRC attorney and staffed with trained investigators.

The creation of the Office of Nuc1ear Safety by then Secretary Watkins provided a locus

for those powers. A logical first mission for the oversight and enforcement units would

have been enforcement of DOE safety Orders imposed by contract, until the civil penalty

and compliance order powers became effective via rulemaking. Under Sccretary Watkins,

the enforcement and oversight units in ONS initiated no enforcement actions, but did

investigate allegations of contractor misconduct.

With a new Administration, the Departmental reorganization initiated in 1992 led

to consolidation of nuclear safety functions with other environment, safety and hcalth

units within Eli. As a result of Secretary O'Leary's reorganization of the Department,

ONS was dissolved and its functions assigned to EH. To date, the oversight and

enforcement units have not focused on standard/order-based compliance assessments and

have issued no compliance orders or enforcement actions under either the 1954 Atomic

Encrgy Act or the Price-Anderson amendments to it. Major enforcement actions

predicated on safety rules are unlikely before 1996 when compliancc with the new

Occupational Radiation Protection rule should be implemented by contractors. The

oversight and enforcement units also have not played an effective role in the enforcement

of existing DOE Orders under contracts to date.

c. Enforcement Issues

At some level within the Department, decisions must be made which weigh

enforcement against other Departmental priorities. The highest level at which this

convergence can occur is the Secretary. Delegation of enforcement power below the level

8

9

10 C.F.R. Part 830.

10 C.F.R. Parts 830 and 834, respectively.

- 95 -
of Assistant Secretary is unlikely, given that the power derives directly from the Atomic

Energy Act and its exercise can have major progranunatic effects. If one eliminates linc

management offices because of conilicts-of-interest, few options are left; among them are

the Office of Environment, Safety and Health (EH), the Office of Inspector General (IG),

and the Office of General Counsel.'· A fourth option is a separate office reporting

directly to the Secretary, Deputy Secretary, or Under Secretary.

The term "enforcement" refers to agency powers (I) to demand certain actions by

a regulated party, usually to correct deficiencies measured against agency criteria, andlor

(2) to impose monetary or other penalties for violations of specified requirements (as an

incentive to avoid such violations in the future). Federal agencies with regulatory powers

have statutory enforcelnent authority, which must be exercised in accordance with the

Administrative Procedure Act."

An agency enforcement program must be based upon requirements imposcd

through legal documents. The Department has available to it three principal mechanisms

by which binding requirements can be imposed on contractors: contract provisions

(usually by incorporation ofsafety orders and other standards), rules issued by notice and

comment, and compliance orders issued by the Secretary lmdcr 10 C.F.R. Part 820. '2

Until reccntly, the Dcpartment "used" the first method (contracts) exclusively despite the

direction ofCongress in 1988 to also use rules and orders issued under the Administrative

Procedure Act. The Department's procedural rules allow civil penalties to be imposed for

contractor violations of rules or compliance orders, or for failing to carry out programs

and plans to meet such rules or orders. 13

Enforcement via contract terms has the advantage of being timely when compared

to a rule/civil penalty approach. Contracts can be modified to incorporate DOE Orders

within a period of months, and most (if not all) M&O contracts now contain terms which

address compliance with those Orders. Such terms vary from contract to contract. DOE

10 OGC apparently was considered as a locus for the enforcement division during the

rcorganization. It remains a candidate.

" 5 U.S.C. § 551 et seq.

12 While Subpart C of Part 820 refers to the issuance of compliance orders by "the

Secretary," it does not bar delegation of this authority to other levels of the

Department. Thus, compliance order authority could be delegated to Assistant

Secretaries with jurisdiction over specific classes of facilities (DP, EM, etc.).

13 See 10 C.F.R. § 820.20(b).

- 96 -
has not uniformly imposed terms which insure adequate attention to the Ordcrs, and the

terms contained in some contracts can be circumvented or avoided.

The Board's strong emphasis on compliance with applicable safcty requirements

in DOE Orders, among other factors, has spurred the Department to add more explicit

compliance terms to contracts and to actually incorporate DOE nuclcar safety Orders by

rcference into somc contracts. The Fernald environmcntalmanagement contract contains

such an Order compliance provision. At least theoretically, a for-profit contractor's award

can be reduced because of failure to comply with safety Orders imposed in the contract.

In the terms of contract law, DOE is in a position to demand specific performance of the

contract's terms as a condition for the award. Specific performance can include strict

compliancc with Orders and other standards where those requirements are spccifically

incorporated into thc contract.

Congrcss decided in 1988, howevcr, that enforccment of nuclear safety

requirements include applicable rules, regulations, and orders, and provided a penalty

system for violation of those requirements. Promulgation ofrules allows participation by

both directly affected parties (contractors) and the general public. A compliance order

directed to a given contractor can be challenged by that contractor in a hearing, and in

such a hearing, intervention by other affected parties is possible. A civil penalty issued

for violation of a rule or order can be challenged in a hearing by the penalized party, and

intervention also is possible in this type of proceeding.

The recently-issued Part 835 regarding occupational radiation protection gives an

"effective date" thirty days after the rule's publication, but builds in an implementation

process which allows non-compliance until January 1996. This is a surprising schedule

given that the rule's technical content is based directly on cxisting DOE Ordcrs and the

Radiological Control Manual. The Quality Assurance rule is cause for even greater

concern. Thc effective date for enforcement of that rule is potentially open-ended.

DOE's enforcement program, however, need not await promulgation of the entire

set of safety rules envisioned by Price-Anderson. Compliance orders or notices of

violation under Price-Anderson could be issued by the Secretary or her delegate at any

time for contractor violation of safety rcquirements which are binding on the contractor

as a matter of contract law. This would include non-compliance with any requirement

takcn from safety Orders incorporated into the contract or from rules promulgated by

DOE after notice and opportunity for corrullent. Although civil penalties per se can be

levied only for rule violations, DOE could under current authority issue demands for

specific contract performance coupled with contract pcnalties (such as award fee

reductions) if the demand is not met. Issuing a "notice of safety violation" has a

compliance-forcing impact, even when the notice does not express an intent to seek a

penalty. To date, none of these existing enforcement mechanisms has been used, to our

- 97 -
knowledge, by DOE attorneys and program managers. However, DOE's General Counsel

and EH are beginning to address these critical issues.

Reduced to its essentials, the Department has safety oversight and enforcement

powers which it has not effectively used. Delays in the rulemaking process, final rules

with delayed compliance schedules, minimal use of available contract enforcement

mechanisms, and past use of the existing enforcement division personnel as missionhelpers rather than enforcement persOimellead to tltis conclusion. The Board has recently

addressed some of these problems in Rccommendation 94-5.

E. REVmW DESIGN AND CONSTRUCTION OF NEW DEFENSE

NUCLEAR FACILITIES TO ENSURE PUBLIC HEALTH AND

SAFETY IS ADEQUATELY PROTECTED

CONGRESSIONAL MANDATE: Congress requires the Board to review the design

of new DOE defense nuclear facilities before construction and to recommend such

modifications of the design as the Board considers necesswy to ensure adequate

protection ofpublic health and safety. 42 u.s. C. § 2286a(a)(4).

Under the Atomic Energy Act, defense nuclear facilities include any equipment

or device, or component, used in the production or utilization of special nuclear material,

except an "atomic weapon." Thus, the Board's mandate for design reviews extends from

individual parts of thosc facilities to complete facilities. Most of the Board's reviews

have, thereforc, been directed at these systems and facilities. The Board also monitors

construction activities to ensure that facilities will adequately protect the public health and

safety when completed. The report of the Senate Armed Services Committee on S. 1085

stated that, with reasonable safety criteria as an objective basis for evaluation, the Board

also should help thc Secretary make sound modernization decisions. S. Rep. No. 232,

100th Congo 1st Sess. 20-21 (1987).

As detailed in the Board's previous annual reports to Congress, this provision has

worked as Congress intended. The fourth annual report to Congress discussed in detail

the Board's systems engineering approach. In summary, the Board recognizes that design,

construction, operation, and decommissioning of a facility form a complete life cycle

system, and facilities must bc developed with this entire system in mind. Any action

related to one part of a facility at any time in its life cycle should take into consideration

effects on the entire facility over all portions of the life cycle, and the relation to other

facilities and their functions. This is what is meant by a systems approach. The Board

applies this approach to system safety reviews of existing (already designed facilities) as

wcll as to designs of new facilities or modifications of existing facilities.

For existing facilities, the Board analyzes the adequacy of the radiological safety

design basis. For new facilities, the Board analyzes the design early in the design and

- 98 -
construction process. Several design and construction reviews have been completed, are

underway, or are planned, as listed below.

HANFORD SITE:

Facility

New interim storage for K-basin fuel

Multifunction Waste Treatment Facility (MWTF)

Tank Waste Remediation System (TWRS) which

includes the new high level waste tanks proposal

Cross site transfer line

High level waste Vitrification Facility

High level waste Pretreatment Facility

IOI-SY Mixing Pump installation design

I06-C Retrieval design

K-East Basin Electrical upgrade

Multi-canister overpack design

Review Status

Ongoing

Ongoing

Ongoing

Ongoing

Planned-Future

Planned-Future

Complete

Complete

Complete

Complete

IDAHO NATIONAL ENGINEERING LABORATORY SITE:

Facility

1CPP - Tank farm upgrade

ICPP - Reracking of fuel basins

RWMC - Pit 9 recovery project

Review Status

Complete

Complete

Complete

ROCKY FLATS ENVIRONMENTAL TECHNOLOGY SITE:

Facility

New Waste Storage Facility

B776 Supercompactor and Repackage Facility

B371 Pit storage vault modifications

SAVANNAH RIVER SITE:

Facility

Defense Waste Processing Facility (DWPF)

Replacement Tritium Facility (RTF)

In-Tank Precipitation (ITP)

K-reactor upgrades

- 99 -

Review Status

Plarllled-Future

Complete

Ongoing

Review Status

Ongoing

Complete

Ongoing

Complete
LOS ALAMOS NATIONAL LABORATORY:

Facility

Proposed modifications and upgrades to the

Chemistry and Metallurgy Research building

Dual Axis Radiographic Hydrotest Facility

Modifications to the Nuclear Materials

Storage Facility

Various radioactive waste handling and

storage facilities

PANTEX PLANT:

Facility

"Stage Right" project for expanding interim

storage of pits in Zone 4

New weapon assembly/disassembly bays in

Building 12-104A

New Special Nuclear Material Component Staging

facility in Building 12-116

Review Status

Ongoing

Ongoing

Ongoing

Ongoing

Review Status

Complete

Ongoing

Ongoing

OAK RIDGE RESERVATION AND PADUCAH/PORTSMOUTH GASEOUS

DIFFUSION PLANTS:

Facility

Storage pads for UFo cylinders

NEVADA TEST SITE:

Facility

Device Assembly Facility

SANDIA NATIONAL LABORATORY:

Facility

Annular Core Research Reactor modifications

- 100 -

Review Status

Ongoing

Review Status

Ongoing

Review Status

Ongoing
Based upon experiencc to date, the Board believes that its existing statutory

authority for design and construction review is sufficient to effect Congressional

objectives for tllis component of the Board's oversight function. DOE has been

cooperative and responsive to review findings. For example, at Savannah River Site,

systems were reclassified to safety-related at the Defense Waste Processing Facility,

tritium inventory limits were adopted at the Replacement Tritium Facility, and power

limits were adopted at the K-Reactor.

F. DETERMINE THAT DOE'S RESPONSE TO BOARD

RECOMMENDATIONS ADEQUATELY PROTECTS PUBLIC

HEALTH AND SAFETY BEFORE RESTART OF PLUTONIUM

OPERATIONS AT ROCKY FLATS ENVIRONMENTAL TECHNOLOGY

SITE

CONGRESSIONAL MANDATE: In 1992 the Senate Armed Services Commillee

expressed concern with the safe restart of plutonium buildings at the Rocky Flats

Environmental Technology Site (Rocky Flats) in the National Defense Authorization Act

for Fiscal Years 1992 and 1993. Section 3133 of that Act requires the Secretary of

Energy to respond to the Board's recommendations numbered 90-2, 90-5 and 91-1 to the

Board's satisfaction before plutonium operations are restarted in buildings at Rocky Flats.

The report of the Senate Armed Services Committee concerning the National

Defense Authorization Act for Fiscal Vears 1992 and 1993 expressed concern with the

safe restart of plutonium buildings at Rocky Flats. The provisions reported by the

Committee were essentially the same as enactcd as section 3133.

Section 3133 requires the Secretary of Energy to respond to the Defense Nuclear

Facilitics Safety Board (DNFSB) recolllmendations numbered 90-2, 90-5 and 91-1 to tile

Board's satisfaction before plutonium operations are restarted in select buildings at Rocky

Flats. The Board's implementation of this provision has operated as Congress expected

it would. On a building-by-building basis, DOE was required to demonstrate to the Board

that defense nuclear facilities at Rocky Flats were ready to safely operate. The process

brought satisfactory safety results in the restart of Buildings 559 and 707, and should

foster increased public confidence that those facilities will be operated safely.

G. RESTORE PUBLIC CONFIDENCE IN SAFE OPERATIONS OF

DOE DEFENSE NUCLEAR FACILITIES

LEGISLATIVE HISTORY: The report ofthe Senate Armed Services Committee

on S. 1085 stated that the Board "must have a primmy mission to identifY the nature and

consequences of any significant potential threats to public health and safety, to elevate

such issues to the highest levels ofauthority, and to inform the public." S. Rep. No. 232,

100th Cong., 1st Sess. 20-21 (1987).

- 10 I -
Almost without exception, members of the public who have commcnted on the

quality of the Board's teclmical work to upgrade safety at dcfense nuclear facilities have

been complimentary. Howevcr, despite extensive action on the part of the Board and its

staff to inform the public, the hearings conducted during 1994 in preparation for the fifth

·arUlual report revealed continued dissatisfaction on the part of some individuals and

organizations with what is perceived as lack of access to Board decisionmaking processes.

To put this criticism in perspective, the Board's statutory mandates regarding public

access must be understood.

The Board's enabling statute prescribes how and when the Board is to notify the

public of its actions and d.irects thc Board to solicit public comments, views, or arguments

and technical data. Where the Board, as a result of its deliberations, determines that

action is necessary, section 312 of its enabling statute requircs the Board to "make such

recommendations to the Secretary of Energy with respect to Department of Energy

defense nuclear facilities ... as the Board determines are necessary to ensure adequate

protection of public health and safety." 42 U.S.C. § 2286a(a)(5). Section 315 of the

Board's enabling statute specifically prescribes the process by which the public is to be

informed and when to comment on the recommendations. The Board's enabling

legislation provided for public availability and comment on Board recommendations "after

receipt by the Secretary of Energy" or by the President in appropriate cases. 42 U.S.C.

§§ 2286d(a) and g(3). On July 24, 1992, the D.C. Circuit Court Appeals upheld the

Board's rules implementing the Government in Sunshine Act. The COUIt determined that

any Board "deliberations" on potential recommendations for the President or the Secretary

of Energy regarding health and safety issues at DOE's defense nuclear facilities must be

conducted in closed meetings pursuant to the Sunshine Act. Natural Resources Defensc

Council v. Defense Nuclear Facilities Safety Board, 969 f.2d 1248 (D.C. Cir. 1992), cert.

denied, 113 S. Ct. 2332 (1993). The Board believes that the above requircd method of

operation has worked well.

Parallel provisions guarantee to thc public an opportunity to comment on the

Secretary's response and intended implementation of the Board's recommendations.

hould the Board believe that its recommendations address a "severe or imminent threat

to the public safety," the public must be notified after receipt of the recollUllendation by

the President, but there are no provisions for public comment.

Congressional reporting rcquirements can be viewed as another avenue Congress

provided to assure that the public had a meaningful opportunity to be heard on perceived

or actual health and safety threats posed by DOE's defense nuclear facilities. Moreover,

Board reports assist Congress in fulfilling its oversight responsibilities.

- 102 -
1. Availability of DoculIlcnts for Public Rcview nnd Comment

In its Armual Reports to Congress during the pa t five years, the Board has

highlighted its cfforts to inform members of the public and to incorporate their views in

the process of oversight over the health and safety of defensc nuclear facilities. Thc

Board has carefully adhered to requirements for publication of recommendations and the

Secretary'S rcsponses, and for receiving comments during dcvelopment of its

recommendations.

Specifically, after receipt by the Secretary, the Board makes its reconmlendations

available to the public in the Department of Energy's regional public reading roOlllS and

publishes the full text of each recommendation in thc Federal Register. Each Federal

Register notice also requests interested persons to submit comments, data, views, or

arguments to the Board concerning the recommendations. The Board also supplelllents

the Federal Register notice by providing personal notice of recommendations and when

requested tluough use of a regular mailing Jist. Currently, congressional representatives

and committees, federal and state officials and cOl1llllittees, public interest organizations

and members of the public receive personal notice of the Board's recommendations after

receipt by the Secretary of Energy.

In 1991, the Board established a public reading room and document centcr with

electronic document search capability. Extcnsive technical files accumulated by the Board

are available to the public for rcview. Many arc accessible to the public over the Internet.

Numerous requests for documents have been responded to on a routine basis. The Board

receives numerous requests for information, with some being pursuant to the Freedom of

Information Act (FOIA), and the rest as direct inquiries. The Board has responded in a

timely manner to all of these requests and has been complimented, in unsolicited letters

and in testimony before Congrcss, by private citizens and public interest groups for its

prompt and competent handling of information requests and for facilitating public access

to information. No Board response to a FOlA rcquest or a request for public docUJ1lents

has bcen judicially challenged.

2. Board Regulntions Promoting Availability of Information

In 1991, after public notice in thc Federal Register and consultation with the

Administrative Conference of the United States, the Board issued its final rules

implementing the Goverrunent in the Sunshine Act (56 Fed. Reg. 9605), and its final

Rules Implcmenting the Freedom of Information Act (56 ed. Reg. 21,259).

3. On-Site Hearings and Discussions

During the past five years, the Board has held 38 public meetings and hearings in

Washington, D.C., and in communities in which defense nuclear facilities are located.

• 103 -
Consistent with its public health and safety mandate, the Board has also providcd

oppOltunities for interested groups or persons, both public or private, to cxpress their

views as to DOE facilities directly to the Board membcrs, in informal and in open

discussions near the sites. These discussions have been held with federal, state, and local

officials, labor leaders, DOE facility workers, and area residents for the purpose of

exchanging information and assuring that the Board's review plans were known to all

interested parties. Generally these briefings and meetings were noticed in the Federal

Register, newspapers, and on radio stations, and notices were sent in advance to interested

groups and individuals.

For example, at Hanford, Board members met with the press and interested

members of the public to exchange information concerning the nuclear waste tanks.

Detailed DOE and contractor briefings of the Board have included, by Board invitation,

representatives of the Governors of Oregon and Washington, State and Federal

Enviromnental Protection Agencies, and the GAO, to insure that responsible government

officials were fully informed. The Board has met with the Governor of Colorado and

representatives of the Governors of Tennessce, New Mexico, Texas, and Washington.

4. Activities Supporting The Fifth Annual Report

In 1994 the Board conducted nine public hearings for the sole purpose ofreceiving

the views of the public and other interested persons regarding (I) the Board's

effectiveness in meeting its objectives, (2) recommendations to continue, modify or

terminate the Board's functions, and (3) recommendations on implementing modifications.

All but one of these hearings were held near DOE defense nuclear facilities. The

remaining hearing, at the Board's offices in Washington, D.C., was for the purpose of

receiving testimony from the Secretary of Energy and senior DOE officials on these

topics. Comments were received, either orally or in writing, from eighty-four individuals

or groups related to the local hearings at DOE sites. Some of these comments were

critical of the Board's interactions with the public. The Board was urged to place greater

emphasis on working with local citizens and govcnunents, to assign site representatives

to sites where this has not yet been done, and to hold more informal meetings and

hearings in the field.

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IV. OPTIONS TO STRENGTHEN SAFETY OVERSIGHT AT DEFENSE

NUCLEAR FACILITIES INCLUDING POSSIBLE STATUTORY

CHANGES

The Board has considered and discussed a wide range of options regarding the

adequacy of its current statutory authority and whether that authority should be amended

or even eliminated entirely. The Board has reached the following basic conclusions,

explained latcr in this section.

• Elimination of external safety oversight of DOE, including the Board's functions,

is not advisable.

• Formal regulation (without licensing) of defense nuclear facilities, either by the

Board or another agency, is not necessary nor would the perceived benefits likely

justify the added costs.

• Licensing and related regulation of defense nuclear facilities is evcn more

unnecessary and impractical, and could conflict with national defense and security

functions if licensing were applied to cssential facilities within thc defense nuclear

complex.

• The Board's cmrent statutory authority is adequate to achieve Congress's

purposes; however, the Board, building on progress made in 1994, can make better

use of the range of tools available to it by statute to more fully achieve the results

sought by Congress in establishing the Board.

A. ELIMINATION OF EXTERNAL OVERSIGHT

Both the Board and DOE recognize that the need for an independent oversight

function is a continuing one. Moreover, safety work initially entrusted to the Board is far

from complete. On December 6, 1994, the Secretary of Energy cited numerous instances

where the Board's activities contributed to substantial safety improvements in the defense

complex. The Secretary has also initiated efforts to enlarge external oversight by

advocating OSHA inspections and surveillance ofthe Depmtment's programs for assuring

occupational health and safety. In the public hearings conducted tluoughout the country

in preparation for this report, witnesses generally urged that the Board continue its work

to ensure protection of public health and safety at defense nuclear facilities.

The storage, stabilization, processing, and use of radioactive materials at defense

nuclear facilities will be required for many years to come. These functions will be

necessary for support of the Weapons Stewardship and Stockpile Management programs

and for the cleanup and decommissioning of surplus facilities. The potential hazards of

dealing with radioactive materials are inherent in these activities. In the interest of worker

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and public health and safety, the safe management of such materials will need to be

provided as long as such programs exist.

During the Board's five-year tenure, substantial progress has been made in

identifying and reducing radiological risks at some sites. Many hazardous activities lie

ahead. Included among these are the stabilization of residues of the production of

plutonium and safe storage by these special nuclear materials pending final disposition.

Because numerous program decisions regarding the future of the complex have not yet

been made, potential hazards cannot be projected accurately. However, every additional

year of program delays generates increased hazards in the form of deteriorating storage

containers, formation of hazardous and potentially explosive gases, and even greater

obsolescence of process and monitoring equipment. These kinds of safety problems will

continue and in some cases increase independently of which agency of govermnent

assumes programmatic responsibility.

In view of these continuing safety hazards, the Board docs not recommend

elimination of external safety oversight for defense nuclear facilities.

B. MAINTAIN THE CURRENT STRUCTURE, BUT MAKE BETTER

USE OF STATUTORY TOOLS CURRENTLY AVAILABLE

Fundamental changes in the defense nuclear complex, coupled with what the Board

has learned in overseeing the complex, support some changes in the way the Board has

conducted its oversight activities, even if the fundamental character of the Board's

enabling statute remains unaltered. As pointed out previously, the Board does not have

authority to mandate timely and effective completion of corrective actions committed to

by DOE in Implementation Plans for Board recommendations. The Board believes that

the best means for remedying this situation is to make bettcr use of the "action forcing"

mechanisms already available to the Board.

1. Elevating Safety Issues to Highest Lcvels Within DOE and Bettcr

UtilizlItion of Public Hearings on Safety Issues

As discussed previously, one of the keys to adequate development and

implementation of safety recommendations by the Board is early and sustained

involvement by high-level DOE of"ficials responsible and accountable for progress. In

1995, the Board and DOE took steps toward insuring that this assignment ofresponsibility

and accountability takes place early in the process for each recommendation.

After acceptance of DOE's Implementation Plans, Board and staff reviews,

inspections, and discussions at the site in question intensify and focus on activities under

the plan. When !'aced with inaction or inadequate progress in achieving the planned

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corrective action, the Board has proposed spccific remedial measures to high level DOE

officials.

As stated previously, the Board's enabling statute provides for the possibility of

hearings on safety matters of concern to the Board. The hearings conducted to date have

bcen effective in monitoring DOE progress, or lack thereof, in implemcnting

recommendations and, to some extent, in fostering accountability by DOE officials for

mecting commitments in implementation plans.

The December 6,1994 Board hearing at which the Secretary of Encrgy, the Under

Secretary, the Assistant Sccretaries, and DOE's General Counsel appeared as witnesses

is an excellent case in point. In that hearing the Secretary and other high-Icvel DOE

officials made conunitments to address and complete safety corrective actions in such

fundamental areas as hiring of additional well-qualified technical personnel in Defense

Programs, retaining critically needed and uniquc technical expertise of key persoilllel at

the weapons laboratories, establishing specific safety roles and responsibilities for

supervisors and managers in the defense nuclear complex, and achieving compliance with

safety requirements at those facilities.

The Secretary of Energy suggested that such hearings be conducted periodically

in the future to supplement the informal briefings with the Board now conducted by the

Secretary on a quarterly basis. Such hearings allow the Board in public to interact with

DOE leadership at the highest level, achieve consensus on how to procecd in major

problem areas, and foster understanding of the Board's expectations for safety. By their

vcry nature, such meetings deal with the highest level policy and programmatic concerns

of the Board in an open public forum.

In spite ofrepcated site visits by the Board, and intensified tecluucal staffscrutiny

of site-specific problems, lower-level DOE officials and contractor personnel do not

consistently achicve adequate progress in implementing Board recommendations. Where

serious difficulties arise in correcting high priority safety matters at specific sites, more

formal hearing processes may bc in order. For example, it is possible that such hearings

could have pinned down more effectively and expeditiously thc nature of technical and

adlllinistrative problems; identified areas of disagreement between the Board and DOE and

contractor personnel; and ultimately prompted DOE to complete some safety

improvements more quickly in implementing such fundamental Board recommendations

as 90-2 (development and implcmentation of safety requirements), 91-6 (radiation

protection), and 93-5 (waste characterization).

The Board is authorized by statute to conduct both informal and formal hearings.

It has authority to subpoena witnesses, obtain testimony under oath, and secure documents

that are withheld. Questioning under oath in a formal setting focuses the witness on the

need to prepare for questioning and to assemble technically supportable and reliable

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information before the hearing. Use of formal hearing procedures in appropriate

circumstances would signal that the Board intends to use every vchicle available to it to

achieve safety progress. Questioning in a public forwll also creates an even greater

atmosphere of accountability than informal hearings or closed briefings.

The Board intends to make greater use of hearings to increase DOE's

responsiveness to Board safety initiatives and to explore roadblocks to expeditious and

competent implcmentation of acceptcd recommendations. To the maximum extent

possible, these hearings will be open to the public.

2. Incrcasing Public Involvement in Board Activities

Since its inception in October 1989, the Board has adhered to a policy of seeking

out and meeting with any person or organization having expressed concerns about health

and safety at the DOE's defense nuclear facilities. In implementing that policy, Board

members have traveled to defense nuclear sites where they have met with contractors,

DOE representatives, State and local elected and appointed officials, members of the

public, and reprcsentatives of labor unions and public intercst groups.

The Board fully SUppOltS the U.S. Attorney General's recent direction that the

freedom of Information Act clearly articulates a presumption and preference for

government agencies to make information available to the public. The Board also has

realized important benefits from informing the public and obtainjng its input on health and

safety issues. For example, the Board's public meeting to obtain information regarding

Los Alamos National Laboratory's failure to comply with the Secretary's direction for full

compliance with DOE safety orders demonstrated that public airing of such mattcrs

cnhances Board efforts to protect public health and safety. Thc Board intends to continue

its policy of public involvement, and increase its use of meaningful ways for involvement

in the future. The Board intends to pursue the following:

• Increase the use of appropriate Board briefings, unrelated to development of

formal safety recolnmendations, to inform the public;

• Making the Board and/or technical staff accessible to DOE citizen advisory

COITUllittees established at various sites;

• Establishing site representative positions, similar to those at the Pantex Plant and

the Hanford Reservation, at other defense nuclear facilities, particularly Rocky

Flats and Savannah River Site;

• Continuing its established record of being a leader in the prompt and efficient

disseminator of safety documentation; and

- 108 -
• Increasing the use of public hearings to question DOE witnesses on progress in

implementing Board recommendations.

3. Communication With Congress on Safety Matters

Congress is another vehicle for bringing more accountability to the DOE safety

programs. In addition to its annual reports to Congress, the Board may conllilunicate

significant safety issues and impediments to progress at sites during Congressional

hearings. For example, the Board's Chairman testified to several Congressional

subcommittees regarding the need for excepted service authority at DOE. That authority

will help the Department to recruit and promote better-quali(jed technical staff required

for more effectual performance in assuring safety at defense nuclear facilities. Congress

passed an amendment to the Atomic Energy Act in 1994 giving DOE excepted

appointment authority, which became effective October 5, J994.

C. NEED FOR STATUTORY CHANGES

The Board has discussed a number of possible changes to its organic statute (short

of formal regulation and licensing) to address the difficulties in effectuating DOE

responsiveness to the Board, which have been brought to the attention of Congress in

prior annual reports. As to each potential change, the Board concludes at this time that

the problems can be best addressed by more vigorous use of existing statutory authority.

The Board does not foreclose seeking statutory changes in the future should the need

clearly arise. Possible changes considered include:

1. Shortening the Period Allowed for DOE Responses to Board

Recommendations and for Development of Implementation Plans

A review of DOE's responses to the Board's recommendations during the past five

years demonstrates that DOE almost always requests a statutorily-permitted 45-day time

extension to respond, resulting in a total time of ninety days. Similarly, the Department

now uniformly takes an authorized extension of forty-five days beyond the original ninety

days to prepare an implementation plan. With these added together, DOE regularly takes

a total of 225 days from receipt of the recommendation to issue an implementation plan.

Many plans need revision before they are adequate, a process, in whole or in part, which

can take years to accomplish. Although the statute allows actual implementation even

before a plan is submitted, that is not the norm.

The Board is not convinced that altering these deadlines by statute wouJd

materially improve the situation. The Board recognizes that some of the issues raised in

its recommendations are much more complex than others. In such instances, longer

periods are justified because more time is needed to develop an adequate response and

plan. The goal, after all, is not receipt of any document called an "implementation plan"

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within the statutory deadlines, but the timely rcceipt of an adequate implcmentation plan,

and the diligent carrying out ofthat plan under a management arrangement that does not

diffuse responsibility for its execution. These objectives, the Board observes, arc more

likely to be met when top-level DOE management (including the Secretary) take personal

responsibility for directing the necessary work to write and execute a plan. To ensure that

DOE management at the highest level assumes this responsibility for existing and future

reconunendations, the Board believes that regular public mectings with the Secretary and

the heads of major program offices are effective. As discussed in the previous section,

public hearings may also be used to determine why DOE's implementation of

reconunendations has faltcred either as to schedule or quality of work.

2. Startup Approval and Stop Work AutboJ'ity

The Board considered two options in regard to startup approval. A first option is

to require the Board to determine whether or not public health and safety arc adequately

protected beJore a defense nuclear facility is started or resumes operation. This finding

is analogous to the Board's certifying that a facility is safe, and it resembles licensing.

Second, the Board could be authorized to determine whether the DOE's responses

to recommendations regarding the facility in question adequately protect public health and

safety. This is a direct parallel to the Rocky Flats provision, which presents a

complication when applied to all defense nuclear facilities. Section 3133 of Pub. L. 102-

190, 105 Stat. 1574-75, referred to existing Board recommendations applicable to Rocky

Flats, and to DOE responses, as the measuring stick for whether or not a facility was

ready to operate. To adhere to the Rocky Flats model, Congress would have to decide

which Board recOlmnendations -- or other measures of safety -- should be used in

determining whether a facility was prepared to operate safely. For example, Congress

could direct the Board to measure readiness against DOE's own Orders and other

requirements governing operational readiness.

Congress could confer on the Board explicit authority to stop work at defense

nuclear facilities, based on safety considerations, without resort to the recOlmllendation

process or the "inU11inent or severe threat" provisions ofthe statute. Such authority would

parallel, for example, NRC's authority to halt operation of a nuclear power plant due to

violations (or potential violations) of safety parameters. Stop work orders could be

limited to a very specific activity at a facility (for example, proceeding to the next step

of a process) or could be broad enough to halt operation of an entire facility pending

resolution of safety questions (for example, structural adequacy).

These stmtup or stop work authorities would, of course, be subject to override by

the President if they interfered with national security. The Board does not believe

additional statutory authority as outlined above is necessary at this time. Over the past

five years, there havc been several instances in which the Board has made it clear to DOE

- 110 -
that operation of a certain defense nuclear facility was contrary to safety principles.

Examples include the K-Reactor and HB-Line at the Savannah River Site, Building 559

at Rocky Flats, and the Fernald Environmental Restoration Project. Each of these

facilities was the subject of a Board recommendation regarding conditions necessary for

startup or rcsumption of prior activities. None of the facilities went into operation until

the conditions laid out by the Board were satisfied.

The Board has observed no instance where DOE management has deliberately

operated a defense nuclear facility in an unsafe condition warranting an inunediate

shutdown order by the Board. In the latter part of 1994, for example, DOE took prompt

action to halt operations at the Oak Ridgc Reservation Y-12 facility after the Board's

teclmical staff pointed out deficiencies in criticality procedurcs. These deficiencies led

the Board to issue Recommendation 94-4 on Septembcr 30, 1994, but DOE's curtailment

of Y-12 operations and thc commencement of corrective actions preccded even the

issuance of the Board's recommcndation. Similarly, in 1992 the Board's staff identified

plutonium pits stored in severely substandard conditions in Building 991 at the Rocky

Flats Plant. Several pit storage containers were located in standing water and others were

exposed to water in-leakage. In response to expressed Board concerns, DOE's Office of

Defense Programs promptly acted to move the pits to a more satisfactory area for storage

and subsequently developed plans for complete revision of pit storage practices at Rocky

Flats. Provided DOE continues a policy of prompt and adequate response when safety

deficiencies are discovered, the Board does not need additional authority to order

immediate actions or to halt opcrations.

The Board is satisfied that, should a situation arise where startup or continued

operation of a facility might be contemplated by DOE despite serious safety problems, or

result in imminent or scvere risk, a rccommendation to the Secretary or to the President

would result in prompt action.

3, Safcty Standards: Board Concurr'ence Autho,'ity or Assumption of

Responsibility for Establishing Standards

The Board has reported to Congress in each of its previous four annual reports on

the progress made toward the improvement of DOE safety standards, including rules,

orders, and other requirements. While substantial progress has been made since 1990,

implementation delays occur and some DOE standards need improvement. The Board

considered two possible statutory changes which could impact these problems:

• a statutory requirement that DOE obtain formal Board concurrence for standards

affecting nuclear safety, or

- 1II -
• a statutory proVISion assigning the Board responsibility and authority for

establishing safety orders, rules, and other requirements with which DOE and its

contractors must comply.

As to the first of these, the Board believes it has been able to significantly impact

the content of proposcd DOE Ordcrs without any need for formal concurrence authority.

Tlu-ough interactions at the staff level and at the Board-DOE managcment level (if

necessary), many proposed DOE safety Orders and generic standards have becn modified

to reflect Board Mcmber views. Standards reviewed and commented upon by the Board

and its staff include a series of revised nuclear safety Orders in the DOE Order 5480.20

series; guidance on implementing those orders; radiation protection requirements and

guidance; seismic criteria; and draft teclmical standards on safety analysis reports, accident

analysis criteria, implementation of safety regulations, and exemptions from regulations.

The Board is currently reviewing a number of proposed DOE technical standards,

including Orders, rules, site-specific S/RIDs, and other safety requirements.

DOE's increasing use of public rulemaking to develop and issue nuclear safety

requircments docs not impair the Board's ability to ensure the adequacy of these

requirements. The Board can comment during any phase of the rulemaking, can use its

reporting authority to obtain supporting data from DOE, and can hold public hearings to

obtain testimony from DOE and others. Informal mectings between the Board's technical

staff and DOE persorll1el have also proved an effective COllUuent mechanism.

For the most part, the Board has found DOE receptive to comments from the

Board on proposed standards and requirements. If DOE intended to issue a final standard

thc Board believed inadequately protected public health and safety, the Board would not

hesitate to use its existing statutory powers to ensure that the deficiencies arc corrected

prior to implementation of the standard. To date, the Board has no reason to conclude

that its current ability to influence the content of standards is inadequate.

Actual transfer of safety standards devclopment to the Board from DOE would

represent a major change in the Board, from an action-forcing oversight agency to a

regulatory agcncy. Generally, enforcement power must be transfcrred along with

standards-setting power. To assume this task, the Board would have to acquire significant

additional staff and funding. Most impOltantly, standards carmot be developed in a

vacuunl. DOE's standards development program relies significantly upon technical

expertisc in the laboratories, field offices, and other organizations which the Board would

have to tap or duplicate.

The Board concludes that standard-setting power is not needed at present because

the Board has been able, chiefly through recommendations, to spur DOE to develop or

revise safety standards when necessary. Several of the Board's early recommendations,

including 90-2 and 91-1, aimed squarely at this target by seeking broad changes in the

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way DOE developcd and used standards to enhance safety at defense nuclear facilities.

Other Board recommendations dealt with more specific standards topics.

• Recommendation 9J -6 required among other things that DOE compare its

radiation protection standards to commercial industry standards.

• Recommendation 92-6 sought DOE development of standards to be used for

conducting operational readiness reviews (ORRs).

• Recommendation 93-1 urged DOE to compare safcty standards at weapons

facilities with those used at production and processing facilities.

• Recommendation 94-2 addrcssed the need for DOE's standards on the disposal of

low level radioactive defense waste.

• Reconmlendation 94-5 stressed the importance of DOE's properly integrating the

issuance and implementation of nuelear safety rules, orders, and other

requirements.

Each of these recommendations was accepted by DOE. While implementation has not

always been timely and efficient, significant progress has been achieved.

The Board's efforts on the standards front have resulted in substantial improvement

in DOE's standards structure over the past five years. Wholesale transfer of standards

developmcnt might slow down the upgrade process. Accordingly, the Board does not

favor transfer of safety standards development outside of DOE. The Board will continue

to review DOE standards and to use its existing authority to improve DOE's standards

program.

4. Imposition of Implementation Plan Commitments As Contract Terms

With few exceptions, the mandates in the Board's enabling statute are directed

toward DOE, not its contractors. The contractors, however, are instrumental in the

development of implcmentation plans and are vital to the completion of those plans. The

Board's review of existing contracts and requests for proposal often reveals that actions

related to implementation of the Board's recommendations and DOE's safcty Orders are

not contractual requirements. A statutory change could require DOE to insert appropriate

terms regarding implementation of Board recollilllendations and DOE Orders into

contracts.

In cases where the Board has specifically brought this issue to the attention of

DOE management, changes have rcsulted. In Recommendation 94-5, issued at the end

of J994, the Board requested that DOE undertake a thorough review of the mcans by

- IJ3 -
which nuclear safety requirements are imposed on contractors. DOE has begun addressing

some of these issues. During 1995, the Board will be reviewing DOE's implementation

plan for Recommendation 94-5 and will continue to scrutinize DOE contracts and requcsts

for proposals to assure that nuclear safety requirements are incorporated.

5. Board Authority to Compel DOE and Coutractor Action to Implement

Bonrd Reeommendatious

A statutory change could authorize the Board to issue compliance orders and to

take enforcement actions against DOE and its contractors when conunitments made in

implementation plans addressing Board reconunendations are not fulfilled. Compliance

orders are an appropriate tool--uscd by many Federal regulatory agcncies--to mandate

specific corrective actions, suspend certain activities, or can'y out programmatic

commitments. Board orders directed to DOE, if authorized by statute, would not give rise

to procedural complexities such as the need to meet Administrative Procedure Act hearing

requirements. Board orders to contractors would need to be accompanied, for due process

reasons, by the offer of an administrative hearing to the contractor if factual or other

matters are in dispute. This would in effect invoke the Board as a quasi-regulatory

agency, which Congress, in establishing the Board, rejected. This option also might create

an incentive for DOE to submit weak, non-specific implementation plans incorporating

lengthy schedules inconsistent with the urgency of safety problems.

D. MAJOR REORIENTATIONS OR MODIFICATIONS IN BOARD

STATUTORY AUTHORIZATION

l. Introduction: Determining the Extent of DOE Self-Regulation

The Department of Energy's nuclear programs are authorized by the Atomic

Energy Act of 1954, as amended. This statute originally assigned a wide range of

responsibilities, both civilian and military, to the Atomic Energy Conunission. A

licensing program was established as a means of fostering commercial uses ofradioactive

materia.is such as atomic power. Nuclear weapons applications and the production of

weapons materials remained entirely under Federal control. This centralized control of

military applications was maintained as AEC functions were transferred first to the Encrgy

Research and Development Administration (ERDA) and then to the Department of

Energy. The NRC was created to license and regulate conunercial use of radioactive

materials.

Throughout the period of the '50s and '60s, the preemptive nature of the Atomic

Energy Act ensured tight Federal control of both civilian and military nuclear activities.

Beginning with passage of the National Envirorunental Policy Act (NEPA) in 1969,

however, the preemptive domain of the Atomic Energy Act began to shrink. In the

decades since the passage ofNEPA, DOE autonomy in the field of nuclear operations has

- 114 -
gradually becn eroded by the passage of statutes such as envirolIDlental laws, the Federal

Advisory Committee Act, and by Presidential orders, judicial decisions, and stronger

assertion of State jurisdiction. Today, many defense nuclear activities of DOE are tightly

constrained by law and the regulations of other agencics. But one element of the AEA

continues to be of paraIl10unt importance -- "the common defense aIld seclu-ity" of the

nation.

During the past ycar, there has been much discussion of the extent to which DOE

is self-regulating. "Self-regulating" means the extent to which the Department's programs

and actions are not constrained by Federal and State laws other than the Atomic Energy

Act. The premise that DOE today is self-regulating is inaccurate. It is a carryover from

the early days ofthe Manhattan Project and AEC. Defensc nuclear activities were exempt

from licensing under the Atomic Energy Act and remain so today. However, exemption

from licensing is not synonymous with cxemption from external oversight. In fact, DOE

is subject today to very substantial external regulation and oversight. This results not only

from oversight of nuclear safety by the Board, but also from the Department of

Transportation and the Environmental Protection Agency. The most notable exception

to external oversight is in the occupational safety and health area. The extent of existing

regulation is graphically displayed in Figure 1 (presented in Executive Summary) and

discussed in detail in the material that follows.

The measure of DOE self-regulation is fully understood by considering three types

of constraint on action.

• LEGAL CONSTRAINTS: statutes,judicial decisions, and xecutive orders

which the Departmcnt must follow without discretion.

• PRACTICAL CONSTRAINTS: factors which effectively restrict the

Department's freedom of action, such as agreenlents with States and other

Federal agencies, implementation plans for Defense Nuclear Faci.lities

Safety Board recommendations, and budgetary restrictions.

• POLlCY CONSTRAINTS: reflccted in overall Administration policy

objectivcs, public perception, and foreign policy interests.

These constraints apply to all aspects of DOE nuclear operations, from procurement to

waste disposal. The interest here is to determine what constraints apply to the radiological

component ofthe Dcpartment's health, safety, and environmcntal protection programs for

defense nuclear facilities and activities. These programs can be broken down into the

following seven categories:

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• NUCLEAR SAFETY" for activities not within the purview of either DNFSB or

NRC,

• NUCLEAR SAFETY for defense activities within the purview of DNFSB,

• NUCLEAR SAFETY for activities licensed by NRC,

• INDUSTRlAL SAFETY AND HEALTH at all defense nuclear facilities,

• POLLUTION CONTROL at all defense nuclear facilities, and

• SAFETY AND ENVIRONMENTAL PROTECTION at cleanup and waste

disposal sites.

The level of self-regulation and external over ight of DOE's nuclear safety

program varies from site to site and may actually vary within a given site. Some DOE

non-defense nuclear facilities are neither licensed nor within Board jurisdiction. Facilities

within Board jurisdiction are subject to inspection and oversight. Many changes in the

DOE nuclear safety program at these facilities have resulted directly from Board

recommendations and on-site reviews. Nonetheless, DOE retains operational freedom of

action at these facil ilies and cannot be ordered by the Board to take or not to take specific

actions. DOE facilities licensed by the Nuclear Regulatory Commission, e.g., Yucca

Mountain high level nuclear waste repository, will be regulated by NRC according to its

regulations and standards, some of which are based on EPA regulations and standards,

e.g., 40 C.F.R. Part 191. Similarly, EPA set standards for radiation protection, under

authority of the AEA, Executive Order 10,831, and Reorganization Plan No.3 of 1970.

These standards, when approved by the President, are to be used as guidance by other

agencies, e.g., DOE, NRC, whcn preparing their own detailed procedures on radiation

protection.

Industrial health and safety programs at DOE facilities are required by Executive

Order to meet OSHA rcgulatory requirements." OSHA does not have statutory

inspection and enforcement powcr at defensc nuclear facilities; however, the Secretary of

Energy has invited OSHA to begin inspection of DOE facilities. As of this writing,

14 For purposes of this discussion, nuclear safety is meant to encompass those

features of design, construction, operation, and decommissioning of nuclear

facilities that are intended to prevcnt or mitigate accidents with potential for

radiological consequences to workers or the public.

IS Exec. Order No. 12,196,45 Fed. Reg. 12,769 (1980), reprinted as amended in

5 U.S.C. § 7902.

- 116 -
OSHA inspections have not been routinely conducted at defense nuclear facilities. Board

recommendations often have touched on worker safety issues when related in some way

to radiological health and safety, e.g. hcalth physics.

In the area of environmental impacts, DOE's freedom of action is already tightly

constraincd by Federal law. NEPA requires that environmental impacts of proposed major

actions be fully analyzed before the action is taken.'· This statute, coupled with many

broad judicial interpretations of its scope and requirements, has already strongly affected

the Department's freedom of action and schedule for construction of new facilities,

remediation of hazardous sites, and reconfiguration of the defense nuclear complex. The

Clean Air Act controls permissible levels of airborne radioacti ve emissions. '7 The Clcan

Water Act applies to some radioactive pollutants, but not those regulated under the

Atomic Energy ACt. '8 Thesc levels are established by the nvironmental Protection

Agency and havc been internalizcd by DOE in its orders. The Resource Conservation and

Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA) heavily impact the storage and disposal of hazardous wastes

and the cleanup of environmentally-damaged sites.

The Departmcnt retains authority under the Atomic Energy Act ovcr handling and

storage of radioactivc materials such as fissionable uranium and plutonium when not

mixed with other hazardous wastes; mixed radioactive and hazardous wastes, on the othcr

hand, are within the scope of RCRA. '9 Thus, storage of plutonium metal rcmoved Irom

16 42 U.S.C. § 4332(2)(C).

17 The Clcan Air Act, 42 U.S.c. § 7401 et seq., applies expressly to "source, special

nuclear and byproduct" material, 42 U.S.C. § 7422(a), and applies to federal

facilitics, 42 U.S.C. § 7418.

'8 Although the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C.

§ 1251 et seq., applies expressly to "radioactive materials," 33 U.S.C. § 1362(6),

and pollutants from federal facilities, 33 U.S.C. § 1323, the U.S. Supreme Court

has found that source, special nuclear, and byproduct materials regulated under the

AEA are excluded from this definition; however, some radioactive materials

remain subject to the Act. See Train v. Colorado Public Interest Research Group,

426 U.S. I (1976).

19 EP1\ included regulation of mixed waste within RCRA in 1986. Sce 51 Fed. Reg.

24,504; State ofNew Mexico v. Watkins, 969 F.2d 1122 (D.C. Cir. 1992). RCRA

was applied to federal facilities by the Fedcral Facility ompliance Act of 1992,

Pub. 1. No. 102-386, 106 Stat. 1505 (1992).

- 117 -
warheads is not a regulated activity,>o though it is clearly within Board jurisdiction.

Transportation of defense-generated radioactive materials, excluded from Board

jurisdiction, is regulated by the Department of Transportation and by individual States.

Under CERCLA, EPA oversees cleanup of DOE's facilities based on interagency

agreements which can include states as partics.

In 1982, Congrcss mandated that long-term disposal ofhigh-level radioactive waste

in a geologic repository would be the subject of licensing by the Nuclear Regulatory

Commission. DOE's uranium gaseous diffusion plants are to be certified by NRC under

published standards, but not licensed under the Atomic Encrgy Act and the Administrat.ive

Procedure Act. 42 U.S.C. § 2297f. Later in tlus report, the feasibility and policy

implications of extending the licensing concept to otl1er DOE nuclear sites and activities

are explored. Other DOE facilities and activities have bcen subject to regulatory oversight

on a case-by-case basis. For example, under the WIPP Land Withdrawal Act, EPA must

certify that the WIPP can mect EPA's high level and transuranic waste disposal standards

before the WIPP can be used to dispose of waste. The Uranium Mill Tailings Radiation

Control Act directs DOE to conduct remedial actions to EPA's standards governing

cleanup and disposal of mill tailings.

It should be noted that not all hazardous activities undertakcn either by govcrnment

or the private sector are subject to oversight and regulation. Nor does lack of external

oversight imply lack ofsafety or an inability to achieve safety without oversight. Adding

one layer of government on top of another is expensive and potentially regressive if tI1e

"overseen" agcncy no longer takes full responsibility for its work. Additional regulation

of DOE activities should be considered only where it is clear that safety and

enviroJUnental goals cannot bc reached by improvements from within DOE.

A visual representation may assist in understanding the relationship between

constraints on DOE's authority and areas of DOE's safety and environmental

responsibility. In each of Charts A - F that follow, legal, practical and policy constraints

are applied to cach of the seven safety and environmental functions listed above. Two

additional charts identify candidate agencies for additional ovcrsight responsibilities and

statutory amendments nceded to effectuate such oversight.

20 OSHA guidance applies to worker handling.

- I18 -
A. uclear Safety for DOE Activities Outside Board and NRC Jurisdiction

Legal Constraints

The Atomic Energy Act

of 1954, as amended,

requires the Secretary to

establish rules, orders

and other standards "to

protect health or to

minimize danger to life

or property ...."

42 U.S.C. § 2201(b).

Only the Courts and

Congress can decide

whether DOE is carrying

out this AEA mandate.

Practical Constraints

Nuclear safety standards

resulting from compliance

with NRC requirements

for licensed facilities

(if any) and Board

recommendations for

defense nuclear facilities

""ill have some impact on

facilities and activities

not explicitly covered. To

avoid numerous styles of

operation and multiple sets

of requirements, this subset

of nuclear facilities wiLl

probably be "boxed in"

vis-a-vis nuclear safety

issues by regulated facility

requirements.

Policy Constraints

Safety problems at any

DOE facility, when

generally knovvn, result

in adverse publicity and

Congressional interest.

By the time problems grow

to this magnitude (e.g.,

a release of radioactive

material), however,

solutions are costly and

the harm may already have

been done. Regulation is

intended to help prevent

serious safety deficiencies.

- 119 -

Summary

DOE remains self-regulating

for nuclear facilities such

as research reactors not

under Board jurisdiction.

Even if these facilities

remain immune from external

oversight, they ""ill likely

be forced to meet nuclear

safety requirements emanating

from NRC regulations and

Board recommendations.

Subjecting this class to

some form of external

safety oversight could be

accomplished with straightforvvard amendments to the

AEA. The nuclear propulsion

program operated by the

Office of aval Reactors is

not subject to external

oversight, but voluntarily

utilizes the overview of the

Advisory Committee on

Reactor Safeguards.
B. uclear Safety for DOE Defense Activities Within the Board's Jurisdiction

Legal Constraints

The Atomic Energy Act of

1954, as amended, requires

the Secretary to establish

rules, orders and other

standards "to protect health

or to minimize danger to life

or property ...." 42 U.S.C.

§ 2201(b).

Practical Constraiots

Recommendations of the

Board on nuclear safety, once

accepted by the Secretary, are

a strong commitmeot to

action, though the Board does

not have direct enforcement

power. Federal radiation

protection guidance applies to

protection of the general

public and workers: e.g.,

guidance approved by the

President in 52 Fed. Reg.

2822 (1987) and new

guidance proposed by EPA in

59 Fed. Reg. 66,414 (1994).

This guidance provides a

framework for agencies to

meet International

Commission on Radiation

Protection (ICRP) and

National Commission on

Radiation Protection (NCRP)

standards.

- 120 -

Policy Constraints

The unstated policy of two

Administrations and

Secretaries has been to accept

and implement Board

recommendations. Policy

considerations for the

previous category also apply.

Summary

DOE's nuclear safety

policies and requirements are

reviewed by the Board and

subject to Board

recommendations.
C. Nuclear Safety for DOE Activities Licensed by the NRC

Legal Constraints

The Atomic Energy Act of

1954, as amended, requires

both the Nuclear Regulatory

Commission and the

Secretary to establish rules,

orders and other standards

"to protect health or to

minimize danger to life or

property ...." 42 U.S.C.

§ 2201(b).

The Nuclear Waste Policy

Act of 1982, 42 U.S.c.

§ I0101 et seq., mandates

NRC licensing subject to

EPA standards of a highlevel waste repository to be

built by DOE. RC, EPA

and DOE have issued

regulations partially

implementing this Act.

Privatized gaseous diffusion

plants to be certified by NRC

according to published

criteria. 42 U.S.C. § 2297f.

Practical Constraints

States can influence Federal

policy through Congress, the

courts, and Federal laws

permitting a State role in

permits and licenses. Yucca

Mountain is an obvious

example.

- 121 -

Policy Constraints

Policy strongly influences the

high-level waste program.

Summary

NRC licensing reduces DOE

self-regulation of nuclear

safety to that of any other

NRC licensee: DOE is

responsible for safety but

NRC is the judge of when

adequate protection is

achieved. To date, C has

not licensed a DOE-owned

or operated facility.

Licensing of the repository is

far off in the future.
D. Industrial Health and Safety

Legal Constraints Practical Constraints Policy Constraints Summary

Section 19 of the At defense nuclear facilities, one. The Executive Order makes

Occupational Safety and Board can and has issued clear that DOE must meet

Health Act, 29 U.S.C. § 668, recommendations affecting OSHA standards; what is not

requires Federal agencies to worker safety. State worker yet determined is whether

establish worker protection protection laws and policies DOE will be permitted to

regulations consistent \vith might have some impact on assess its own compliance or

those of OSHA. local DOE sites even if not will be inspected by an

legally applicable. The external body (OSHA, the

Executive Order 12,196 Secretary of Energy has Board, etc.). Congress could

requires all Federal agencies invited OSHA inspection of also provide each State \vith

to comply \\lith OSHA DOE facilities. OSHA has some worker safety

worker protection standards indicated that it lacks jurisdiction.

unless the Secretary of Labor adequate resources to assume·

approves alternate standards. such responsibility.

- 122 -
E. Pollution Control

Legal Constraints Practical Constraints Policy Constraints Summary

Clean Air Act, 42 .S.C. 1) Agreements v.~th States. Administration policy can DOE does not have much

§ 7401 et seq.; radioactive strongly influence the level of maneuvering room in this

pollutants specifically 2) Board recommendations effort and funding of field, except as to onsite

c·overed in Section 7422. bearing on environmental environmental protection inspections of its facilities.

protection from spills, efforts, though the basic DOE's own requirements

Clean Water Act, 33 U.S.C. releases, etc. statutory requirements are perforce follow the already-

§ 1251 et seq.; some unlikely to be relaxed. applicable statutes and

radioactive material covered 3) State environmental laws regulations of EPA.

in Section 1362(6). and regulationsfpermits.

National Environmental

Policy Act, 42 U.S.c. § 4321

et seq. (impact statements

and assessments).

Marine Protection, Research,

and Sanctuaries Act of 1972,

33 U.S.C. § 1401 et ~.;

radioactive materials, Section

1402(c).

Hazardous Materials

Transportation Act of 1975,

as amended, 49 U.S.c.

§ 5101 et seq.; radioactive

materials, Section 5103.

- 123 -
F. Safety and Environmental Protection at Cleanup and Waste Disposal Sites

Legal Constraints Practical Constraints Policy Constraints Summary

NEPA (cited above) Same as previous page: Same as previous page: DOE has little discretion

Administration policy and left in this area except as

RCRA, 42 U.S.C. § 6901 et 1) Agreements \vith States, Congressional attitudes to non-mixed radioactive

seq.; excludes source, special such as the Tripartite have strong influence on materials such as uranium

nuclear or byproduct material Agreement for Hanford. pace of programs, funding. and plutonium metal and

as defined in the Atomic compounds thereof. DOE

Energy Act. [42 U.S.C. 2) Board recommendations requirements in orders,

§ 6903(27)] Courts have held bearing on environmental rules and operating or

that it does cover mixed protection from spills, ERMC contracts mandate

radioactive/toxic waste. releases, etc. compliance with

environmental statutes,

CERCLA, 42 U.S.C. § 9601 3) State environmental EPA regs, and State

et excludes releases of laws and requirements as applicable.

source, special nuclear, or regulations/permits. Defense waste stored at the

byproduct material in Waste Isolation Pilot Plant

compliance with Atomic (WIPP) falls within EPA

Energy Act licenses. [42 RCRA jurisdiction if

U.S.C. § 960I(lO)(K)] mixed waste; the Board

also has jurisdiction over

Nuclear Waste Policy Act of WIPP (see discussion in

1982, 42 U.S.C. § 10101 et the Board's first Annual

seq. (long-term disposal of Report to Congress at 44-

high-level waste, UF6). 45).

Low Level Radioactive

Waste Policy Act, as

amended, 42 U.S.C. § 202lb

et seq.

- 124 -
2. Ovcl"View of thc Board's Position on Need for Full Rcgulatory 0'·

Liccnsing Authority

Formal rcgulation of defense nuclear facilities, without licensing, is an option for

expanding the regulatory tools available to the Board. This option could be matched with

viltually any option for expanding, contracting, or maintaining current Board jurisdiction.

It is an intermediate option between the Board's current statutory authority and the

allernative of formal regulation with licensing authority, which is analyzed in the next

section. The Board's position relative to the need for formal regulation or licensing of

DOE defense nuclear facilities may be summarized by referring to Figure 2 (presented in

Executive Summary), which divides the defense nuclear complex into four parts. Part I

of Figure 2 displays the traditional facilities and functions of the defense nuclear

complex--weapons assembly, disassembly, and testings; weapons design at national

laboratories; and other production facilities. The legislative history relative to the

establishment ofthe Board clearly indicates Congressional interest in continuing to cxempt

defense nuclear facilities from licensing. Licensing provides the possibility and authority

for a licensing agency to deny pcrmission to construct, operate, or continue to operate.

ongress chose to reserve decisions affecting national defense and security for the

President and Congress. Congress saw, however, the need to subject nuclear safety at

DOE's defensc nuclear facilities to an external scrutiny. Congress authorized the Board

to oversee the radiological health and safety aspects of practiccs and facilities which werc

not previously subject to external regulation, including the design, construction, operation,

and dccommissioning of defense nuclear facilities. At a minimum, in the Board's view,

those facilities of the defense nuclear complex deemed necessary for defense and security

should continue to be constructed and operated subject to cxternal oversight, but without

the encumbrances of a formal licensing process.

Palt II of Figure 2 displays facilities and functions related to the decontamination

and decommissioning of facilitics no longer needed for production, and those necessary

for the treatment, storage, and handling of nuclear waste. Tbe rationale for exempting

facilities no longer needed for national security purposes is somewhat different from the

case made for continuing to excmpt defense nuclear facilities required for national sccurity

and dcfense from licensing.

The Board is currently authorized to provide external oversight of defense nuclear

facilities and activities from design through decommissioning. The Board's oversight

duties appear to overlap with EPA's responsibilities when ccrtain facilities are combined

with associated contaminated land areas to dcfine "operable units" for cleanup under

CERCLA provisions. EPA and the states are also involved in new facilities being

constructed or operated to treat, stabilize, and safely store mixed radioactive waste and

residuals of the production of special nuclear materials.

- 125 -
There appears to be a pcrception in some circles that a different form of external

regulation of these activities, such as NRC licensing, would enhancc public acceptability

of DOE actions. The more fundamcntal considerations should be whether the cost of

alternative external oversight and regulations would exceed the benefits. Given the

extensive external regulation and oversight already accorded facilities that fall undcr

Part II, it makes little scnse to add yct another agency to those that DOE must deal with

for these facilities.

Ideally, one agency should retain the lead for external oversight or regulation of

these nuclear facilities from start to finish; that is, from design through final disposition.

The object should be to maximize safety and minimize the cost of oversight and

regulation, not complicate DOE's compliance effOlts by fragmentation of requirements

imposed by multi-agencies.

Defensc nuclear facilities and activities that are bcing remediated pursuant to

environmental restoration laws are displayed in Part III of Figure 2. Remedial actions

come under the purview of the CERCLA, EPA, and states. In some cases, DOE will also

have made commitments to the Board regarding public health and safety aspects relevant

to remedial actions at defense nuclear facilities. The Board in such cases can and should

assist EPA by insuring that such commitments are duly considered prior to completion of

the rcmedial action plan. In effect, the Board should strive to assure an ordered transition

of the ovcrsight function.

Part IV of Figure 2 clearly illustrates that final repositories for nuclear waste are

governed by existing statute and rcgulation. Thus, there is no need for additional

regulatory authority.

3. Advnntages and Disadvantnges of Conferral of Regulatory Authority

While the following discussion focuses on the Board as a possible regulator or

licensing agent, the advantages and disadvantages generally apply regardless ofthe agency

given regulatory or licensing authority. Regulatory authority is the ability, granted by

statute, to control, direct, or restrict another's action by agency rule or other legally

enforceable order, specification, or requirement. Licensing authority is a particular type

ofregulatory nctivity which empowers the licensing agency to forbid certain actions until,

and unless, a license is granted to the licensed entity after demonstrating its ability to

conform to certain standards. Thus, granting the Board formal regulatory authority

without licensing would mean allowing the Board to control, direct, or restrict DOE

actions without use of a license or permit.

The major advantage of conversion to regulation of defense nuclear facilities is

that it would provide the Board with greater action-forcing authority and thereby enable

it to effect change more expeditiously. Regulatory bodies may mandate action by the

- 126 -
regulated entity. External regulation is perceived by some as a means for engendering

greater public acceptance of activities at defense nuclear sites.

Several disadvantages counterbalance the advantages of regulation in this case.

First, regulation of defense nuclear facilities is not easily reconciled with national security

imperatives. Regulatory or licensing programs must make allowances for national security

and defense priorities, or those programs could be detrimental to rapid responses necessary

to counter international threats. Second, the additional administrative burdens and costs

ofrUlming a regulatory agency need to be weighed against the added safety assurance that

might be achieved. The judgment of the Board is that the added benefit in this instance

would not justify the cost. The Board is convinced that enhanced use of its oversight

tools will achieve many of thc safety gains attributed to regulation or licensing without

enormous increase in cost. Third, substantial safety gains made by five ycars of the

Board's recollUnendation process could be lost if such a conversion takes place and

Congress does not mandate a process for preserving the progress already made. The

regulatory body would have to either adopt or develop its own regulations and build

independent compliance and enforcement programs, requiring years of effort.

The power to impose and enforce requirements is central to regulatory authority

as distinguished from the current, or enhanced, Board oversight capability which relies

upon an advisory/recommendation arrangement. Many regulatory agencies establish

mandatory standards, rights, and duties which the regulated entity (individual, group, firm,

indu try, etc.) must comply with. The regulator enforces compliance through the

imposition of penalties (civil and criminal) or other remedies (e.g., injunctions, decrees,

restraining orders, and writs of mandamus). Authority to enforce DOE-promulgated rules

under the Price-Anderson Act amendments could be transferred to the Board or another

agency. This would address the situation where DOE enforces safety requirements at

contractor-operated facilities the Department owns and is responsible for. However, it is

imprudent to split standard-setting ftmctions from enforcement. Any organization charged

with setting standards for its own operation will have little incentive for imposing

restrictive safety requirements if others have the independent authority to enforce those

standards once adopted.

The Board currently cannot set safety standards; it can only propose them to DOE.

Tt has only informal "action forcing" powers--the authority to make rcconUllendations and

elevate the matter to the President and Congress if DOE's response does not meet with

the Board's approbation. The option of regulatory authority without licensing would

augment the Board's enforcement authority by allowing it to perform one or more of the

following functions: to require safety standards, not just recommend them; to mandate

corrective actions for safety problems identified during Board oversight activities; to

impose requirements which correct long-standing persormel deficiencies; and to enjoin,

restrain, or penalize any violations of the standards. One way to assign the Board penalty

powers would be to transfer from DOE the authority under the Price-Anderson Act to

- 127 -
impose penalties on DOE contractors for violations ofsafety rcquirements that have gone

through rulcmaking.

Of regulatory functions, it is the ability to promulgate and then enforce

standards--through stop work orders, fines, penalties, or enforceable orders--that is most

distinctive of formal regulation. Although the Board would be authorized to impose

standards on DOE, and to seek enforcement actions against the Department or its

contractors for violation of the standards, under this option the Board would not have the

authority to require DOE to obtain a license or permit prior to operating certain facilities

or performing certain operations. The Board could usc its regulatory powers, however,

to condition opcration on operational readiness--demonstrated compliance with applicable

rules, Orders, and other safety requirements. The option of granting regulatory authority

without licensing could also subsume some of the measures, previously analyzed, which

would strengthen and improve the Board's enabling statutc; measures that fall short of

"formal rcgulation."

a. Possible Health and Safety Advantages of the Regulatory Option

In addition to the major advantages and disadvantages stated at the outset, a variety

of lesser pros and cons mark the option of formal regulation without licensing versus the

Board's current authority. Although not a direct health and safety advantage, regulation

(and licensing) would provide interested members of the public with perceived enhanced

opportunity to participate in the safety process.

Among the possible health and safety advantages of the option are the following:

First of all, authority to set, and not merely to recommend, standards would allow tbe

Board to establish a set of safety requirements. The Board would not necessarily need

to prepare the requirements, but could enforce or impose existing goverrunent, industry,

or consensus standards. Thus, this option would strengthen and augment an explicit

Board function--perhaps the most important one--in a straightforward way.

Second, after the initial lapse needed for startup and development of the rules,

DOE's implementation of formal Board actions would be accelerated if DOE and its

contractors faced enforcement actions, in the form of fines, penalties, or court orders. In

other words, to the degrec DOE management would find enforcement actions less

palatable than Board recommendations (with the possibility of elevation to the President

or Congress), then the Board's ability to enforce safety would be strengthened by the

added authority to impose them.

Third, the role and strength of the Board would become clearer if it had enhanced

enforcement capabilities. In other words, the Board would be more powerful even if it

merely had--but did not make use of--the authority to levy or seek fines, penalties,

injunctions, decrees, restraining orders, or writs of mandamus. Tllis is analogous to the

- 128 -
argument that certain Board capabilities, such as subpoena power and the authority to hold

adjudicatory hearings, make the Board more effective even though thcy remain latent and

rarely, if ever, exercised.

Fourth, monetary penalties could be made proportional to the seriousness of the

Board's violations of the health and safety requirements. Fines might give DOE greater

incentive (beyond that provided under the current oversight/advisory/recommendation

framework) to improve health and safety, and provide thc Board with another means of

transmitting to DOE the priority or weight that should be accorded certain Board actions.

b. Countcrvailing Tcchnical Health and Safety Disadvantages of thc

Regulatory Option

Among the technical disadvantages of the option are the folJowing: First,

achieving assurance of public health and safety could be further dclayed when the current

plans for DOE compliancc are reoriented toward compliance with a new set of

rcgulations. Safety depends ultimately not on the source or type of oversight or

regulation, but rather on the actual implcmentation of and adherence to codes and

standard by line management. As the post-TMl Kemcny Commission report (p. 9) states,

"we are convinced that regulations alone cannot assure the safety of nuclear power plants.

Indeed, once regulations become ... voluminous and complex ... they can serve as a

negative factor in nuclear safety." It is unclear what improvement in protecting public

health and safety would result from allowing the Board to set, rather than simply suggest,

standards. In short, formal regulation may add little to the Board's current oversight

authority.

Second, it is common that a regulated entity may bc less forthcoming and

cooperative in a more formal regulatory relationship; external regulation will not

necessarily induce excellencc in teclmical tmdert.akings. The historical success ofindustry

and consensus standards such as those promulgated by professional organizations contrast

with the mixed results of (compulsory) legal requirements. Successful examples are

standards developed by Undcrwriters Laboratories and the Institutc for Nuclear Power

Operations (INPO), and the American Society of Mechanical Engineers (ASME).

Third, health and safety issues lJlay be resolved less expeditiously than at present.

More formal regulation could well mean more emphasis on "due process," a greater

likelihood of appeals, greater reliance on legal staff, and more opportunity for legal

intervention by external groups. Technical issues are rarely justiciable in the conventional

sense; the closer a regulatory regime comes to the formal, intrusive, legalistic model (i.e.,

the closer it comes to formal regulation with licensing), the more the substance of health

and safety is encumbered by form and process.

- 129 -
Fourth, commitment to implcmentation may not be any better in response to edicts

than in response to recommendations. DOE's record of taking action in response to

enforcement action under environmental statutes is poor. There is no analytical reason

to belicve its response to enforcemcnt action by the Board would be any belter.

Fifth, in a formal regulatory relationship with DOE, the Board might be reluctant

to rccommend actions that go beyond mandatory, enforccable regulations, which are

typically minimum standards. On the other hand, an extraordinary degree of discipline

and control would be required to avoid pitfalls such as the appearance of "ratcheting

standards. "

c. Economic (Cost-Benefit) Disadvantages Associated with Regulatory

Option

First, a large staff would be needed to sct and enforce standards in a thorough and

formal manner. Administrative costs would increase cOllllllensurately, necessitating an

increase in resources and budget. It is questionable whether such increased costs would

be outweighed by the bcnefits conferred by the policy shift.

Second, in a regulatory interaction, DOE might be less likely to identify the

advantages and disadvantages, technical and economic, of addressing various health and

safety problems (i.e., to provide the Board a kind of cost-benefit analysis of its actions).

DOE would naturally fear that the regulator would enforce any actions it mandated,

including those suggested in good faith by DOE itself. A more intrusive, formal

regulatory framework might reduce or eliminate this source of feedback and potential

safety improvements.

Third, monetary penalties are lUllikely to be effective when imposed on a

goverI1ll1ent activity since both the overseer and the regulated entity are funded by the

Treasury. Such activity is essentially "taking money from one pocket and putting it in

another," although this might have symbolic importance. The public may perceive such

action as a strong response. In many instances, agencies may carc more about autonomy

than dollars and cents. Non-peclUliary enforccment actions--such as injunctions, decrees,

restraining orders, or writs of mandamus--might be more cffective than monetary

penalties. Yet, non-pecuniary enforcement actions differ more in form than substance

from thc Board's existing statutory powers (e.g., to hold hearings, make recommendations,

establish reporting requircments, etc.) In other words, maintaining or slightly augmenting

the Board's existing statutory authorities might provide as much protection of public

health and safety as granting the Board the power to seck or levy monetary penalties.

Fourth, it would be exceedingly difficult for the Board or another agency to set,

justify, and defend specific monetary penalties for DOE infractions of standards. Neither

extensive experience nor an accepted analytical model is available to guide such an

- 130 -
undertaking. Essentially any fine imposed would run the risk of being challenged legally

or overridden politically_ Either the Board's existing statutory powers or the authority to

impose non-pecuniary penalties would be more immune to attack.

4. Potential Licensing of Defense Nuclear Facilities and Weapons

Activities

The Atomic Energy Act of 1954 established a licensing process for the commercial

use ofradioactive and fissionable materials. This licensing process remains largely intact

today, though some modifications have been made to nuclear power plant licensing. The

Act excluded licensing of defense nuclear facilities, many of which were already under

construction or built and operating in 1954.

It may be argucd that licensing of defense nuclear facilities, Federally-owned and

operated with tax funds, would not be inconsistent per g: with the purposes and objectives

of Federal licensing. However, many of the drawbacks of regulating the defense nuclear

complex, analyzed above, are also applicable to licensing. In addition, licensing would

present its own special difficulties. In the commercial sphere, licensing schemcs

contemplate the agency refusing a license request. FCC can deny transfer of a television

band license; FAA can refuse certification of aircraft; NRC can decline to allow

construction of a commercial nuclear power plant. In the defense nuclear field, denial of

a license for an existing facility would mean it would have to close down. Denial of a

license to an operating facility needed to maintain the nuclear stockpile would have

obvious national security and defense implications. Moreover, many existing facilities are

in need of decommissioning and cleanup; they cannot be simply "closed down" as is.

Licensing applied only to new facilities has the advantage that license denial has

a clear meaning: construction may not commence. But what does denial of a license

mean if the President has decided a new facility is essential to the national defense? Or

if the EPA has ordered that Hanford liquid wastes be removed from leaking tanks and

processed in a new, as yet unlicensed, facility? Overriding national security, safety, and

envirOlllilental objectives may mandate that new facilities be constructed and operated.

This is quite unlike private entities seeking Federal permission to conduct discretionary

activities intended to provide a public service and generate financial profits. The

President and the Congress are constitutionally empowered to determine the need for

constructing new facilities and for maintaining or decommissioning existing facilities.

These considerations suggest that licensing of defense nuclear facilities might best

focus not on whether an activity should be carried on at all, but rather on developing

conditions 'lor safe operation, reduction of environmental impact, protection of worker and

public safety, and related issues. Even to carry out this limited form of licensing,

however, one would have to address a number of practical issues, such as:

- 131 -
(1) what are the technical criteria for licensing?

(2) what procedures will be used?

(3) who will be the liccnse applicant?

(4) how will the public participate?

(5) what will be the role of State and local governments?

(6) how is continued compliance with licensc terms to be assured?

(7) can the license be suspended or revoked, and if so, how is the impact on

national security to bc weighed?

(8) can the sometimes staggering cost of licensing be afforded?

Liccnsing of facilities that conduct nuclear weapons operations would present

additional dilcmmas. Most obvious is the impact of national security concerns:

information regarding nuclear weapons design, construction, and operation must remain

secret despite tbe end of the superpower arms race. Some previously classified nuclear

defcnse information is now publicly available or is termed "Unclassified Controlled

Nuclear Information" (UeN/), a category which would permit limited disclosure to

members of the public. Nevertheless, weapons design information, research work, and

certain data concerning the location and maintenance ofthe nuclear stockpile must remain

classified. This information should never be disclosed in a public forum, nor should it

be disclosed to anyone lacking a security clearance and a need to know. However,

licensing by its very nature is a public process, and hence licensing of nuclear weapons

facilitics is impractical insofar as classified data would be involved. No apparent public

interest would be served by using licensing in any form for operations involving nuclear

weapons.

Though the need to achieve public acceptance of Federal actions has vastly

increased since 1954, the Atomic Energy Act makes clear that the principal goal of

Federal nuclcar programs is to provide for the national sccurity needs of the nation. In

declaring the policy of the United States, Congress stated that the development, use, and

control of atomic energy "shall be directed so as to makc the maximum contribution to

the general wclfare, subjcct at all times to thc paramOlwt objective of making thc

maximum contribution to the conUllon dcfense and security. "42 U.S.C. § 2011.

That national policy endures.

- 132 -
APPENDIX A

1994 RECOMMENDAnONS
28848 federal Register I Vol. 59, No. 106 I Friday, June 3, 1994 I Notices

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

lRecommendaUoh 94-1J

Improved Schedule,lor Re",edialion In

the Delense Nuclear 'Facllitles Co.mptex

AGENCY: ncfcnsc·NudcC\rFuCilitios

Saroty Boarrt.

ACT10N: Notica; r~con:miondaliop.

SUMMARY: Tho Defense NuduM

facilities Safety Donru has mOUtl (l

recommolldation to tho S(:<:rclnry uf
Federal Register I Vol. 59, No. lOG I Friday, June 3, 1994 I Notices 28849

Energy pursuant to 42 U.S.C. 2286a

concerning improved schcdula for

remediation in the defense nuclear

facilities complex. Tho Doard.rcquest9

public comments all this

recommendation.

OATES: Cornmonts, data, views, or

arguments concerning this

re'commendation B.ro due 011 or before

July 5, 1994.

ADDRESSES: Send comments, data.

views. or arguments concerning this

recommendation to: Defense Nuclear

Facilities Safety Board, 625 Indiana

Avenu~. NW., ~uitc 700. Washington.

DC 20004'.

FOR FURTHER INFORMATION CONTACT:

Konneth M. Pusateri or Carolo C.

Morgan, at tho address above or

telepllone (202) 208-6400.

Dated: May 31,1994.

John T. ConwayI

Chainn(Jn.

Improved Schedule for Remediation in

the Defense Nuclear Facilities Complex

The halt in production of nuclear

weapons and materials to be ,used in

nuclear weapons froze tho

lTIRnufactu_ting pipeline in n state that,

fOr safely roasons. should not bo

allowed to persist unremediated. Tho

Donrd has concluded from observations

and discussions'with othef$ that

imminent hazards could arise within

two to three years unless certairi

probl~ms nrc corrected.

Wo are especially concerned about

specific liquids and solids containing

fissilo materials and otllor radioactive

substances iIi spent,fuel storage pools,

r~actor basins. reprocessing canyons,

processing lines. and various buil.dings

once used for processing and weapons

manufacture.

It is not clear ot this juncture how

fissile materials produced for defense

purposes will eventually he de.1t with

long tenn. What is clear is that the

extant fissile materials and related

materials require trep.tment on an

accelerated basis to convert them to

fOnTIS more suitable for safe interim

storage.

The·Board is especially concerned

about the following situations: • Several large tanks in the F-Ganyon

at tho Savannah River Site contain tens

of tllOusands of gallons of solutions of

plutonhun and trans-plutonium

isotopes. The trans-plutonium solutions

remain from califomium-252 products;

they include higllly radiooctive isotope.

of americium and curium. These tanks,

their appendages, and vitoI support

systems ate old. subject to deterioration.

prone to leakage, C!nd ore not seismically

qualificd. If an earthquake or Olhcr

accident were to bcc3ch the tanks. FCanyon wO\lld become so cont3minated

tha.t cleanup \yould be practically

impos9ible. Containment of the

radioactive material under such

cirC\lnlstances \'IIould. be highly

uncertain.

• The K-East Basin at tho Hanford

Site contains hundreds.of tons of

deterioroUng irra.diatod nuclear fuel

from the N-Reactor. This fuel has been

heavily corroded dUring its long period

of storage wider water, and Lhe bottom

of the basin is nOw c01Jored by a thick

deposit of sludge containing antinido

compounds and fission products. The

basin is near the Columbia River. It has

leaked on several occasfons, is likely to

lellk ogain, and bas design alld

construction defects that ma.ke it

seismically unsafo. • The 603 Basin at tho Idaho National

Engineering Laboratory (INEl.) contains

deteriorating irradiated reactor fuel from

a Dumber ofsources. This basin nlso

contains sludge from corrosion of the

reactor fuel. Tho seismic competence of

the 603 Dasin is not established. • Processing canyons and reactor

basins at tho Savannah River Site

contain largo amounts .of deteriorating

irradiated reactor fuel stored under

conditions similar to those at the 603

Basin atlNEl.. • .Thcre arc thousands of containers

of plutonium~bcaringliquids and solids

althe Rocky Flats Plant. the Hanford

SHe, the Savannah River Site. and the

Los Alamos National Laboratory. These

materials were in the nuclear-weaponsmanufacturing pipeline when

manufacturing ended. Large quantities

of plutonium solutions are stored in

deteriorating tanks. piping. end plastic

bottles, Thousands of contninets at the

Rocky F:lats plant hold miscellaneous.

plutonium.beariIig materials classed as

"residuals", some of which are

chemically unstahlo. Many of the

containers of pluton.ium metal also

contain plastic and. in somo at tlle

Rocky FI.ls Plant, the plastic Is believed

to b.o in intimate contact- with the

plutonium. It is well known that

plutonium in contact with plastic can

cause fonnaHon of hydrogen gas and

pyropboric plutonium compounds

leading to a high probabilily of

plutonium fires.

We note that removal of fissile

material. (rom the 603 Basin at INEL

has begun. We are also following tho

plans for remedying sevenil of tile othat

situations listed. In general these plans

nrc at an early stnge. ln addition, we nrc

awaro ofsteps DOE has to.ken to assess

SpeJ1l fuel inventories and

vulnerabilities. Wo also note that a

numher.of onvironmentol osseSSlllcnts

are being ·conducted ill relation to the

situations we have listed above. Finally.

we note that a draft DOE Standard has

been prepared for methods to be used in

safe storage of plutonium metal and

plutonium i)xido.

Those actions notwithstanding. the

Board is concerned about tho slow pace

of remediation. The Doard balieves that

a.dditionaL.delays in stabiliz.ing these

materials will be accompanied by

further deterioration of safety and

wmcccssary increased risks to workers

ond the public.

Therefore the'Board recommends:

(1) That an integrated progrom plan he

fonnultited On a bigh priority basis, to

convert within two to threo years the

materials addressed in the specific

recommendations below, to forms or

conditions suitable for safe interim

storage. This plan should recognize that

remediation will require a systems

engineering approach. involving

integration of fa~ilities and capabilities

at a number of sites. and will require

llttention to limiting worker exposure

and miuimizinRgonaration·of additional

wasto a.nd emission of cffiucnts to tho

environment. The plan sbould includo a

provision that. within a reasonable

period ohime (sucb os olght years). all

slorage of plutonium metal and oxide

should be in confonnance with the draft

DOE Slandard on storage of pluloniurn now being made final.

(2) That a research program be.

establisbed to fill any gaps in the

information base needed for choosing

among the alternate processes to be used

in safe conversion of various types of

fissile materials to optimal forms for

safe interim storage and the long~r term

disposition. Development this research

program should be addressed in the

progrom plan called for hy (1) above.

(3) That preparations be expedited to

process the dissolved plutonium and

trans-plutonium isotopes in tWl,kS in the

F-Cnnyon at the Savannah River Site

into fOnTIS safer for interim storage. The

Board considers this problem to be

especially urgen~

(4) That preparations he expedited to

repackage the plutonium metal that is in

contact With, or in proximity to. plastic

and to eliminate tho associat.::d existing

hazard in any other way that is feasible

and reliablo. Storage of plutonium

materials generated llirough this

remediation proce.ss should be such that

containers need.not be opened again for

additional treatment for a reasonably

long time.

(5) Th.t preparations be expedited to

process the containers of possibly

unslable residues at the Rocky Fl.ts

Plant·and to'convert constituent
28850 Federal Register I Vol. 59. No. 106 I Friday. June 3. 1994 I Nolices

plutofiiurn to a form suitable for safe

inlertm storage.

(6) That preparations be oxpediled 10

process the deteriorating irradiatod

reactor.fuel stored in basins (ttthe

Savannah River SHe into 8 form suitable

for safe interim storage until an option

for ultimato disposition is selected.

(7) That the program be acceleraled to

place the deloriorallng reactor fuel in

the K~East Basin at the Hanford Site in

n stablo configuration for interim storage

until an option for ultimate disposition

is choscn. This progiarn"needs to be

d\rected toward storage methods that

will minimize further deterioration.

(8) That those faeilities that may be

needed for future handling and

treatment of the materials in question be

maintained in a usable stato. Candidate

facilities include. am~mg others. the F·

and li,canyon and the FB- and HBLines at tl10 Savannah River Site. some

plut~nium-liandlingglove box lines

among those at the Rocky Flals Planl.

the Los Alamos National Labor:atory.

and the Hanford Site. and certain

facilities necessary to support It uraniwn

handling capability at the Y-12 Plant at

tho Oak Ridgo Sileo

(9) Expedited preparations to

accomplis? ~ctions in items (3) through

(7) allove should lake into account the

need to meet the requirements for

operational readinoss in accordancp

with DOE Order 5~aO.31.

John T. Conway.

Chainnan.

IFR Doe. 94-13509 Filed G-2-94; 8;45 am)

B1LUNG CODE 0820-KD-M
Federal Regisler I Vol. 59, No, 170 I Thursday, September 15, 1991 I Notices 47309

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

[Recommcnd3flon 94--2}

Conformance With Safety Standards at

DOE Low-Level Nuclear Waste and

Disposal Sites

AGeNCY: Defense Nuclea.r Facilities

Safety Board,

ACTION: Notice; roconunandation.

SUMMARY: The Defense Nuclear

Facilities Safety Board hn.s rnade a

recommendation to tho secretary of

Energy' pursuant to 12 U.S.C. 22860

concerning conformance with s,,1.fcty

standards !,!l DOE low-Ioval nuclear

waste and disposal sitos. Tho Do<u-d

requests public comJnents On Ihis

recommendation.

DATES: Comments. data, views, or

argtunents concerning tItis

recommendation all,) dtio on or before

Oclober 17,1991.

ADORESSES: Sand comments, data,

views, Or argum.onts concerning this

reconUTisndation to: Defense Nuclear

Fucilities Safety Eoard. 625 Indiana

Avenue NW.• Suite 700. \Vashington.

DC 20001-2901.

FOR FURTHER INFORMATION CONTAct:

Konneth M. Pusaleri or C1cole C.

Morgan. al tho address Above or

lelephone (202) Z0ll----6100.

Dilted; September 12, 19~'I.

John T. Conway,

CfrairmUl1.

Dated; Sep:tember u, 19~·1_

The high-level radioactive wastcslhiJt

ara a result ofweapons material

production hav(l boon the strong focus

of waste managamont activities of the

Department o£Energy (DOI;:).

Considerably less attention IHIS been

placed upon the l~rgc volumes of lowlevel radioacti ve waste that have been

generated to da.te and that arc projected

for tho future. Operation. of waste

rnanagerrient facilities anu the

fnuiiltoonnco of the defense nuclear

complex will continue to generate

considerable low-Ievol waste and the

lH.~ed for adequate waste storage and

disposul facHilies. "his volumo is likely

to increase dramaticolly wUh the

deconunissioning and cleconlaJiliniltion

of eXCeS~ faclllt[es.

The Board and its staff have lx1tm

reviewing low-level waste m:.ml1gerncnt

within the defense nuclear complex

pnrsuunlto 12 U.S.C. 22860(0)(1), which

requires the Board to review and

evu}lIote the content and

implomentation of standards, including

DOE orders and regulations, at defenso

nuclear facilities. DOE Order S020.2A,

Radioactive Waste Management, and

tJU} Nuclear Regulatory Commission's

regulation on low-level waste disposal.

Codo of Federal Regulations Section 10

Part 61, have provided the basic framo

ofrofeJ;'cncc for this review. Further, it

was usoful to examine the low~level

waste management program of the

Depilrtment in terms of its past. present.

ilnd tho future operations.

The results of our review arc

summarized as follows:

• As of 1993, tho DOE and its

predecessor agenc.fes have buried

approximately 2.8 million cubic meters

of low-level radioactive wasto. This

waste has l~rgely been disposed of at six

sites througluLc usc ofsho How land

budaI-Savannah River Site. Hanford,

Idaho National Engineering Laboratory.

Oak Ridga National Laboratory, Nevada

Test Site, and Los Alamos National

l.aboratory.

• Low-Iovel waste disposal as

practiced. by DOE contractors has not

kept pace with the evolution of

commercial practices. For example,

DOE disposal progrums are generally

characterized by minimal barriers to

infiltration and uiologic intnlsion, no

requirements to pro~ect inodvertent

human intruders, and ope-ratioo;)l

practices not geared toward· maintaining

integrity of tbe waste form and the

cover. • In 1968, DOE issued Order 5620.2A,

Radioactive Waste ManagemCnt. which

adopted Ule basic perfom1anco

objectives of the Nuclear R,egulatory

Commission's 10 CPR part 61. A key

feature of the Order. is the requirement

to prepare a Performance Assessment

(PA). ThIs Perfomlance Assessment is

intended to den:lonst.ratc that tho buried

waste will remain suffiCiently conuncd

to. pose no undue risk to. public hetllth

and safety. Although the Order was

issued six years ago, no defense nuclear

f(lCilHies site has to date completed the

perfonnance assessment process.

• In establishing low-level waste

burial ground source terms. '<i11rrent DOE

guidanco for performance lIssesSlnf)IlIS

required by DOE Order 5820.2A allows

the ovaluntors to nnglt.."Ct waste disposed

of prior to 1900. Further, it allows

evaluators to apply reference dose

critcrla. to disposal facilities

individually rather than assessing

composito effects when contiguous

burial fiJCilitios exist. A number of othor

factors also complicato site specific

asSt1Ssmcnts. For oxample: (1) A

COfnnlerciallow-lcvol waste lmrial sit~

1.$ sltualed adjaccl1t to 0 DOE burial site

ot Hal\forq; (2) some sitos have multiplf'

burial grounds. n situation not explicitly.

addressed by DOt:: Order 5820.2A; and

(3) agreernents have been established

with Stale/Environmontal Protection

Agency 6utllorities ror closeout of some

burial sites under tlie Resource.

Conservation Recovery Act and the

Comprehensive Envirol)mcntal

Response. Compensation, and Liability

Act provisions.

• Soma effort is being made by those

tasked with sHe wasto mal'Higoment lo

have generators ofwa~te provido longronge forecasts or tho amount of wastes

lhoy will havo to send for disposal, but

tho forecasts arc beset with such

uncertainty. as to provide little

confidence in the'projections. rhis is

especially. true as the projections pertain

to wastes [rom decontamination and

decommissioning; and environmental

restoration.

The DOE's burial of low-level wasto

in some locations within the complex

actuully constitutes nuclear wasta

slorago, sincalnadequato (Jrnplacemcnt

may require later retrieval of tho- W3..":;te,

further processing or packaging. and

final disposal in a demonslrably

adequate facility. Given the substantial

volume of low·level waste buried prior

to 1988 in old burial sites using

practices whic;:h do not meet cwrenl

standards, the lack of complete

compliance with requirements of DOE

Order 58Z0.ZA at currently opera-OJ'S

sites, and the likely dramatic increase ill

future waste volumes. the Board

recommends that:

1. A comprehensive complex-wide

review be made of the low~level waste

issue similar to the review the

Department conducted regarding spent

nuclear fueL As with speot fuel, tho

Objective ofsuch review should be the

establishment oJ the dimensions or the

low·level waste problem and tho

identification of necessary corrective

actions to addrcss..safe disposition of

past, present, and future volumes. The

Irnplemcntat.ion Plan provided the

Board should include:

6. A regularized program for

forecasting future burial needs telative

to' existing capacity, taking into account

tho projected programs for

deCOrlla.mioo.lion and decommissioning

of defenso nuclear facilities and

environmental restoration activities as

wall as CUrrOl'lt oporational units.

b. TIle development and issuance of

additional requirements. standards or

guidance on low~lovcl waste
47310 Federal Register I Vol. 59. No. 178 I Thursd"y. September 15. 1994 I Notices

management that address safety aspects

of waste form and packaging. burinl

ground siting and performance

assessment; facility design,

conslruction, operation, and closure.

and environmental monitoring. Such

guidance should reflect consideration of

concepts of good practices in low-level

wasto managemenl as applied in the

commercial sector. both nationally and

internationally, and results of DOE's

technological developments and

advisories to the State Compacts

pursuant to tho Low Level Radioactive

Waste Nuclear Waste Policy Act of

1982. as amended. c. Planned studies directed towards

(t) improving modeling and predictive

capability for assessing migration of

radionuclides and (2) enhancing the

stability of buried waste forms. deterring

intrusion and inhibiting migration· of

radionuclides.

d. Studies of enhanced methods Lhat

can be used· to. reduce the volurne of

waste to be disposed of. such as

compaction and m·ore environmentally

acceptable incineration.

e. Assessments of the safety merits!

demerits of privatization of facilities for

disposal of DOE low~levels wastes.

2. More immediate steps be taken to

complete the performance assessment

process for all active low-level waste

burial sites as required by DOE Order

5820.2A. In so doing clarifying

instructions should be issued to insure

that,

3. Perfonnance assessments arC based

upon the total inventories (past. present.

and future) emplaced 0< planned for the

burial site(s).

b. Perfonnance objectives (dose

criteria) of DOE Order 5020.2A are

achieved for the composite of all lowlevel waste disposal facilities on the

site.

3. If non-compliance with reference

dose criteria set forth in DOE Order

5620.2A is found. all action plan with

schedule be developed for bringing

operations into compliance or other

acceptable compensating measures be

undertaken in the interim pending final

closure.

John T, Conway.

Chairman.

September8.1g94.

The Honorable Hazel R. O·Leary.

Secretory ofEnargy.

Washington. DC 2058!i

Oear Secretary O'Lenry= On September 8,

1994, the Defense Nucloar Fucililies Safely

Board, in accordanco with 42 U.S.C.

2286a(5), un<,!l1imous npproved

Rtlcol1\l1lendation 94-2 which is enclosed for

your consideration. Rcconuncndation 94~2

deals with Confoml,lllcc with Safoty

Standards at DOE Low-l.c\'el Nuclear Waste

nnd Oispostll Sites.

42 U.S,c. 2266d(a) requires the Board. after

receipt by you. to promptly mako!' this

recommendation available to the public In

the Department of Energy's regional public

reading rooms. The DOilrd believes the

reconUllendalion contains no infonnation

which is classified Or otherwise restricted. To

the exlent this recommendation does not

Include Infonnalion fCSlrlr.ted by DOE under

tho Atomic Energy Act of 1954. 42 U.S.c.

2161-66. as Olllonded. pleasu iUTange to h:we

this recorruneudatlon promptly placed on the

file in your regional public reading rooms.

Tho Doard will publish tbis

recommendation in the Federal Register.

John T. Conway.

Chairman.

IFR Doc. 94-22S75 Filed 9-14-94; 8:45 amI

DIl..UNG CODE 68N-KD..M
Federal Regisler I Vol. 59, No. 191 I Tuesday, Qelobe,' 4. 1994 I Notices 505111

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

[Recommendation 94-3J

Rocky Flats Seismic and Systems

Safely

AGENCY: Dofense Nuclear f'acilitics

Safety Board. .

ACTION: Notice; recommcndatic;m_

SU~MARY: The Defense Nuclear

Facilities Safoty Board has made a

recommendation to tha Secretary of

Energy pursuant to 42 U.S.C. 2286.

concerning Rocky Flats seismic and

systems safety. The Board reques'ts

public conunents on this

recommendation.

OATES: Comments. data, views, or

arguments concerning this

recommendation are' due on or before

November 3, 1994.

ADDRESSES: Send comments, data,

views, or arguments conceminRthis

recommendation to: Defenso Nuclear

Facilities Safety Board,'6Z5 Indiann

Avenue NW., Suite 700. WaSlUJlgtoll,

DC 20004-2901.

FOR FURTHER INFORMATION CONTACT:

Kenneth M. Pusa.teri or Carole C.

Morgan. at the address above or

telephone (202) 208-MOO.

Dated: September 28, 1994_

Joh,n T. Conway.

Chairman.

[Reconunendation 94-3]

Rocky Flats Seismic and Systems Safety

Daled: September 26.1994.

In its Recommendation 90-5, the

Defense Nuclear Fijcililies Safety Board

(Board) recommended UJ.at a site-wide

Systematic Evaluation Program be

conducled al the Rocky Flats Plant (now

the Rocky Flats Environmental

Technology Site), [0 determine if safety

upgrades should be instituted to enable

the defense nuclear buildings and

facilities to meel current safely

rctl\lircmenls. The mission of UlC Rocky

Flats Envirolunontal Technology Site

has changed sillce the issuance of

Recommendation 00-5. and the

Implomentation Plan for the

Recommendation. has been revised to

mOre directly address the current

mission of the Site.

The lloard has been informed in

briefings by the I?opartment of Energy

(DOE) that Building 371 is considered 10

be slnJcturally the best on-site facility

for tbe storage of plutonium, and that

steps arc therefore scheduled that in

time will move the major part of the

Sito's plutonium inyen~ory into storage

in this bUilding. As a result; Building

371 will aSSWTIe a unique role as the

storehouse which contains the. largest

single accumulation of plutonium in the

DOE complex. It follows that potential

health and safety issues associated with

this proposed usc of the building also

assume very high importance.

Accordingly, the Board has been

reviewing potential public health and

safety issues at Building 371. end in

particular, the building's capacity to

provide reasonable assurance of

proteclion of public health and safety

should it be subjected to external forces

from natural phenomena. (earthquakes.

extreme win.ds. and floods). The Board

has observed that"DOE's ongoing studies

in the Systematic Evaluation Program to

better identify the potential hazards

from natural phenomena at Building

371· and to establish means of protecting

against. them are not well integrated. An

effective systematic Evaluation Program

requires a more thorough application of

the SY$tems engineering prOcess. The

Board has con-eluded that activities

currently underway in this respect, to

prepare Building 371 for its extended

role in storage of plutonium, are not

logically structured· and are not

surficienUy encompassing in either

detail or scope to assure that the health

and"safety of tho p'ublic will be

adequately prolected.

Therefore, the Board recommends:

1. Thot an Integrated Program Plan be

formulated to address the civilstructural-seismic safety issues Bnd

evaluations related to the planned use of

Building 371 for storage of plutonium

and related nmclions. This plan needs

to be founded on the principles of

systems ongineering and realistic

schedules. Several studies. pertinent to

such a plan, arc geologic fault

investigations, groundmolion studies,

dynamic building analyses, and soilstructure interaction analyses. Theso

studies and ot.her elements need to be
505112 Federal Register I Vol. 59, No. 191 I Tuesday, October 4, 1994 I NOlices

combined with the building mission

nnd any other functional critoria using

systems engineering principles to

dovelop the Integrated Program Plan.

2. TJi.t the .bove plan address and

explain any reqilirements for changes to

tho current S.fety Analysis Report and

how such chonges will be

accomplished. TMs includes effects

from cnrthqu81es. extreme winds. and

floods.

3. That 8 comprehensive document be

completed describing in detail the

slrnctural analysis methodology and

standards for the building analysis. This

includes explaining analytical methods

used and their applicability '0 the

configuttition ofBuilding 371.

4. That the integrated program plan

use both detenninistic and probabilistic

Juothods· to establish the vibratory

groundmotion criteria that will be used

in the structural evaluation of Building

371. This includes 8 rationale for

rcconcilin"s differences between the two

methods, Moreover, those criteria

should incorporato 0''10 tesults oT a

carefully planned ,imd ';xecuted site

geological faulting invostigationS.

5. That a hazard classification. be

selected for Building 371 whit:h is

supported by rational analysis. This

requires consideration of the BlissiOl1,

period of intended USe, 'l1ld importanca

of the buildilig.

6. That the Integrated ·Program Plan,

consistent with the hazard

classification, hi.clude the plan for

classification of safet)" systems on a

rational basis consistent with the

mission, life, and importance of

Building 371. Issues associated with

hazard,clas$lfic.ation and classification

ofsafety systems are discussed in the

Board's April 29, 1994. Ictter to Under

Socretary Curtis.

7. That any standards used in

evaluating hazards from natural and

man-made phenomena be conlpoIable to

lhose uscq in commercial nuclear

practico.

B. That the Program Plan and the

results of its activities be used to specify

building upgrade and improvements

consistent with the mission ofnuildinR

371.

John T. Conway.

Chairman.

September 26/1994.

Tho Honorable Hazel It O'Leary,

Secretary of EllCigy.

Washington, DC 20585.

Dear Secrulary O'leary: On Sopl~mbcr 26,

1994, the Defenso Nuclear Fadlities $f1fp.ty

Doard, in 8ccordnnce with 42 U,S.c.

§ 22660(5), unanimously approved

Recommendation 94-3 which is endosed for

your r.onsiderotion. RCcOllunClldalion 94-3

denl!! wilh Rocky Flats Seismic ,lIld Syslems

S.foty.

42 V.S.c. § 2206d(a) requires the Board.

o.f\ur receipt by you, to promptly mako t})is

recommendation DvoHablQ to the public In

tho Deportment of Energy's regional public

reading rooms. Tho Boord bolluv85 the

rocolllmend3tion contains no infonnation

which is classified or otherwise restrictod. To

tho oxlenl Ibis recommendation does not

includo infonnutloD restricted by DOE uqdcr

thu Atomic energy Act of 1954. 42 U.S.c.

§§ 2161-66, os a.ncndcd. ploase 3I'nI:nge to

hova this recommendation prOmptly placed on Ole io your regional pUbllt: reading I'QOms.

The Bonrd will publish thi,

recommendation in the federAl Rttlster,

Sint:eruly.

John T. Conway.

Chairman.

(FR 000. 9'-24412 Flied 10-3-94; a;<5 am)

BllLlNO CODE M20-KD-M
50732 Federal Register I Vol. 59. No. 192 I Wednesday. October 5. 1994 I Nolices

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

(Recommendation 94--4]

Deficiencies In Criticality Safety at Oak

Ridge Y-12 ·Plant

AGENCY: Defense Nuclear Facilities

Safety Bow

ACTION: Notice.; :recommendation.

SUMMARY.:: The Defense Nuclear

Facilities "Safety Boord has made a

recommendation "to the Secretary of

Eoergy pursuant 10 42 U.S.C. 2286a

concerning deficiencies in critic..alily

safety at Oak Ridge Y-12 Plant. The

Board requests public comments on thi~

recommendation.

DATES: Comments, data. views. or

argumen~s. conceruinS this

recommendation .are due on or before

November 4., 1994.

ADO'RESSES: Send comments, data,

views. or arguments cOncerning this

recommendation 10: Defense Nuclear

Facilities Safety Board. 625 India.na

Avenue. NW.• Suite '00, Washington,

DC 20004-02901.

FOR FURmEn INFORMATION CONTACT:

KClmeth M. Pusateri orCarole C.

Morgan.. at the .address above or

telephone (202) 208-6400.

DATED: September "30. 1991.

John T. COD\o\o'"aY.

C/lOirman.

[Recommendation 94--4]

Deficiencies in Ctiticolity Safety {It Oak

Ridge Y-12 Plant

Dated: September '27. 1994.

The Defense nuclear Facilities Safety

Board (Board) has issued a number of

recommendations concerning formality

of operations; including

Recommcndation 92-5. Discipline of

Operations i.p II Changing Defense

Nuclear F.acilities Complex. In that

reoommendation. the Board stated that

farjHties 'schedule for continued

operations should develop a style and

levelt~Tconductof'OpcTations which is

comparable to that ·achieved at

commercial nuclear facilities.

Reconunendation 92~5 further notbd

that, prior to achieving an acceptable

level of fonnality. major improvements

were requiied in a. nLUnber of areas,

includ.iJ:1,g safety analysis.reports.

limiting conditions or operation, and

training .nnd quali Gcntion of personneL

The Board and its slaff have been

monitoring the Departmenl of Energy's

(DOE) e!forts to implement an

acceplable level of conduct of

operations at tho"Y-12,Planl in Oak

Ridge. Tennessee. which is scheduled

for continued operations. The Board has

forwarded n number of reports to DOE

during the tast two years indicating the

existence ofsafety.related concerns

r.gardingoperations at Y-12. DOE and

its operating contractor, Martin·Mririetta

Energy Systems {MMES). have taken

some actions to correct deficiencies:

howcver, a number of recent events

have led the Board to the conclusion

that more aggressive and comprebensive

management actions are required to

bring the level· of conduct of operations

al Y-12 to" satisfaetory level.

The Board note, lhat dur'llg lhe past

four months a number of violations of

Operational Safety Requixernents and

other 'safety limits have occurred at the

Y-12 Plant. Most recently, the Board's

slaffidentified a substantial violation of

nuclear criticalily ,safety .limits w~thin. a

special nuclear material storage vault at

Y-12. When the'staffidentified this

deficiency to -on-site personnel.

including e senior MMES m<magcr. an

MMES nuclear crilica.lity safety

specialist,;and one uf DOE's facility

representatives. immediate corrective

actionsIDat were required by Y-12

procedures were not taken. In fact,

proper COIre(.1.i ve actions that were

required by Y-1 Z procedures were not

taken. In fnet. proper corrective actions

were not laken l.lI1til the BO<J.t"d's staff

informed the DOE Y-12 Site Manager.

Subsequently MMES curtailed 0 nwnber

of operations at lho Y-12 PI8Jll. Reviews

of cornpH(lnce with nuclear criticality

safety limits al the Y-12 Plnn revealed

that a widespread level of

noncompliance exists.

In its Annual Report to Congress

(February IW4) the Board noted that

personnel and procedures are

complementary elements in

implementing conduct of operations.

The report stated. "The health and

safety of the public <md workers rest on

a properly trained workforce

accomplishing tasks in a formal

deliberate fashion in accordance with

reviewed and approved procedure:>." In

responding lo the Board's

Recommendation 93--6, Maintaining

Access to Nuclear Weapons Experience.

DOE is evaluating the impact of

expertise preseritly being lost through

ongOing Slaffreductions on their ability

to perfonn nuclear weapons

dismantlc'In,ent al Y-12.

The Board recognizes that .pOE and

MlvlES management have begim taking

aggressive actions to corrcct the specific

problems of adherence to nuclear

criticality safety limits, since the

nuclear criticality .safety occurrence

referred to .above. However, the Board

believes that more ·femains to be done..

Accordlnz, the Board recommends lhat:

(1) DOE determine the immediate

actions necessary to resolve the

nuclear criticality safety deficiencies

at the Y-12 Plant, including actions

deemed necessary before restarting

curtailed operation, Ilnd any

compensatory measures in~ituted.

These acfions should be documented,

along with an explanation of how the

deficiencies remained undetected by

MMES,and DOE (Iino and oversight).

(2) DOE perform the following for

defense nuclear facilities at the Y-12

Plant:

(a) An evaluation of compliance with

Operational safely Requiremenls and

Criticality Safety Approvals (CSAs).

including 8. det~nilln.ation of Ole root

case of any-identificd violations. In

perfonning this assessment, DOE

should us<> tbe experience gained

·d:wing similar reviewal the Los

Alamos plutonium facility afi.d during

the recent '~mainten3llcemode" at the

Pantcx PlanL

(01 A comprehensive review of the

nuclear criticality safety program at

the Y-l2 Plant. including: the .

adequacy of procedural yonlrols. lhe

utility of the nuclear criticality safely

approvals, a.nd a root caoo analysis of

the exlensive level ofnon-<;omplioncc

found in recent revicws.
Federal Register I Vol. 59, No. 192 I Wednesday, October 5, 1994 I Notices

(c) A comparison of tho current level of

conduct.of operations to the level

oxpectod by DOE in implementing the

Board's Recommendation 92-5.

(d) Development of plans. including

schedulos, to address any deficiencies

identified in the analyses conducted

above.

(3) DOE evaluate the experience,

training. and perfonnance of key DOE

and contractor personnel involved in

safely-related activities at defense

nuclear facilities within the Y-12

PlllIl to dctcnnine ifthose personnel

huve the skills and kn·owledge

requJted to exeCute their nuclear

safety responsibilities (in this regard,

reference should be made to the

critical safety elements developed as

pa.rt of DOE's response to the Board's

Recommendation 93-1).

r4) DOE taka whatever actions are

necessary to correct any deficiencies

identified in (3) above in the

experience, training, an<;l parfonnance

or DOE and COntro.ctor personnel.

John T. Conway,

Chairman.

A.ppendix-Transmittal LettC'r to Sccn!tary

of En~rgy

September 27.1994.

Han. Ha:lol R. O'Leary,

Socrelary ofEnergy,

WasllIngton. DC.

Dear Secretary O'Leary: On Septomber 27.

Hl9-1, the Defcose Nuclear Fllcillties Safety

Board, in accordance with 42 U.S.C.

.§ 2286a(5), unanimously approved

Recomnu:mdation 94--4 which is enclosed for

your consideration. ·Recommendation 94-4

deals with Deficlen.cies in Crilicallty Safety at

Oak Ridge Y-12 Plant.

42 U.S.C.'§ 2286d(a) requires the Board,

after receipt by you, to promptly make lhis

reCOlTI]Tlcnd,ltlon available- to tho public in

the Depa.rt.men1 of Energy'S regional public

reading rooms. The Board believes the

reconunelldation contains no information

which Is classified Or otherwise restricted. To

the exlent thi.s rcconunendation does n01

include infonnaHon restricted by DOE: under

the Atomic Energy Act.of1954, 42 U.S.C.

§§ 2l61--66, 'IS amonded, please arrange to

have Ihis recolTunendation promptly placed

on file in your reglona.l public reading rooms.

The Board will puBlish this

recbmmondaUon in the Federal Register.

Sincerely,

John T. Conway.

Chairman.

(fR Doc. 91-24604 Filed 10-4-04: 6;45 ami

BILLING CODE 68:l:o--.Ko-M

50733
Federal Register I Vol. 60, No.4 I Friday, January G, 1995 I Notices 2089

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

(RecOn'll'ncndatlon 94-5]

Integration 01 DOE Salety Rules.

Orders, and Other Requirements

AGENCV: Defense Nuclear Facilities

Safety Board.

ACTION: Notice; "recommendation.

SUMMARY: The Defense Nuclear

Facilities Safely Board has made a

recommendation to'the Secretary of

Energy pursuanllo 42 U.S.C' 2266a

concerning Inlegrtition of DOE Saf.ti'

Rules. Orders. and Other Requirements.

The Board requests public comments on

this recommendatiCin.

DATES: Comments, data, views, or

arguments c.oncerning this

recommendation are due on or before I~cbrui.lry 6. 1995,

ADORESSES: Send comrn.ents. dnla,

vic\vs, or arguments concorning this

recommendation to: Defense Nuclear

FaciliUes Safety Board. 625 Indiana

An~nue, NW.• Suite 700. Washington.

DC 20004..

FOR FURTHER INFORMATION CONTACT:

Kenneth M. Pusateri or Carole C.

Morgan, at the address above or

l.lephone (202) 206-6400.

Dated: Jnnuary 2. 1995,

Tuhn T. Conway,

Chairmun.

(Recommelloalion 94-5)

The'Board has been Jollo\vinS with

considerable interest the struclt,1rC of

DOE's nuclenr health and sa rely

requirements as the transition is heing

made froin the use of Ordors to

rulemaking. The Board recognizes th::ll

the chnng. has been prempted hy

provisions of the Price!Anderson Act

Amendments .of 1988, the need for

uniform, enforceable requirements. and

by 8 desire of the Department to provide

greilter opportunities for public: input

into the process for establishment of

requirements. Thus the Board

understands the reilsons for

development and promulgiltion of

nuclear safety requirements throu~h

rulemaking. However. the Board has

expressed reservations in the past ;Jnd

remains concerned today lest t~le

process of conversion of Orders fo f1Jlfll'

is lIsed {IS o(;cil~ion to:
2090 Feueral Register I Vol. 60. No.1 I Friday. jOlluary 6. 1991> / ~otices

(1) Und\Jly relax or oliminate

important nuclear snfcty requirements

in Ordots.

(2) Relegate good nuclear-safety

practices extant in existing Orders to

optioned status.

(~l) Fo,ego Or delay CUrrcilt efforts 10

bring safety prac~ices int(}compHanc&

with mutually agreed implementation

plans that respond to fccommendations

of the Board.

In accepting Recommendation 91-1,

your predecessor advised tflat

rulemakillS would be it ~ime-conswniHg

process~and he. committed to expedited

issuance and implementation of

updated requirements in DOE: Orders

while rules are developed. Morerecently, in your response of Octobe,21,

1994 to the Board's May 6, 1994 inquiry

10 the Dcpartmpnt. you also

acknowlcdgcd tho need for interim

developnlent. revision, and complianco

with requirelneats in DOc'Orders while

rules-arc being promulgated.

In fllct, your response renected more

complete1y the process that has been

developed in discussions with the

Board and its staff. It stated that

(1) 'rhe Department is-committed to a

requrrcments-hnsed safety management

progmm.

(2) Environment. safety and heQlth

requiremonts nrc identified in rules and

Ord~rs.

(3) Orders ate the prevailing means hy

which the Department identifies

management objectives that are.

requirements for its personnel. and

when incorporated into contmcts.

requirements for DOE contractors.

(4) Nuclear safety Orders are being

phased 'into rules. Rules are the

docoments by which the 001'

establishes binding requirements of

general npplicahility and are edopled

pursuant to'~he Administrati.ve

Procedures. Act.

(5) Contractors are expected to.

(;omply with (l rule Or Order when it

becom~ cHer.:tive. 1

(6) Standa[dsJRtlquirernents

Ideutifil.:i1lion Dor.:umeuts (SJRJDs) arc

developed us cQlhpilutious of site and

faGility-specific requirements cOlltained

in nppHcablc legislation. rules. Orders.

lochnicill standards and other dire.c1ives

necessary lo operate facilities. or

conduct DOEacUvities with aduqt41.te

protection of wod..ers and the general

public. " This slIrn.rnary dearly sho\\is Urnt DOE

intends. that llie definition oI what

constitutes adequacy in the wa.y or

I No\(;:: kul(:..S wually {cquifc an. Un\lICffieDUltiLlll

plan lind lhog atfow a p\:rio(tror lIchieYing

l·onll'lii"l~e. A 3imilnf phl1se·frt period ill

1'I,rlTli.$.~iblu ~rL-qIl.;"QmCnlS. io Orders inc0tfHlt;lt"d

;'1111 r;onlra'ls.

protection of workers and the p\lblic

extends btl)'ond the requiremclllS of

rules. [n that. tho Doard definilely

concurs. It is the compililtioll of

requirements as envisaged for RIDs that

represents the more comprehensive bn:>:e

upon which silO's [lnd racilities are to be

managed fTOm the environmetH, health

and safety viewpoint. This has also been

the thrust of Illany of the Uoard

recommendations dealing with Order

compliance,

However:thc action toward

developmenl of S/RIDs has been slow.

Requirements in Ordors havo been :md

ore still the prevailing DOE means for

defilung safety requirements for

contractors. Requirements in Orders are

made enforceable by incorporating

Orders into contracts. Therefore, the

Bonrd has reviewed a number of

existing. M &. 0 contracts relative to

provisions for Order compliance. Th~

Board has also examined the health and

safety management specificaLions

included in several recently proposed

contract actions (for example. at Rocky

Fk'ts and HanforCl/Solid Woste

Management). PedOrtllOnco per

conditions specified either-in existing

contracts or those morc recently

examined will not in our view assure

delivery of the safety management

programs we beHevA that the Board and

the Department expect. .

Though the Boord has been reassured

by your leller of OCloher 21 and by olher

means that requirements in DOE Orders

are to remain operative until replaced

by mles, thera appears to-be contrary

guidance being issued te>the fJeld. For

example. a May 27. 1994 memorandum

from the Assistant Secretary for Defense

Programs provides guidance that in

effect encourages a premal\lC6 shift in

rosources from Order compliance to rule

compliance. For rules that will have

progressed far enough in the

promulgation process lhat ollly a fl}\\'

months MA left for a show or

complianco. s~ch action may he

appropriate as r~gllrds ostablishing

priori lies in as~ignin8 reSources.

However, soch actiOf'! ,should not be

r.:onstmed as countenancing roraxntion

of'ne<."eSSO'r)' requirements of t·he

existing Order. Moreover, for propo:l>ed

rules not nearJy so far along in the rule·

making process. impending

developments should' not be taken as

cause for a slowdown on complrance

offorlS or the upgradiilg of applicllble

requirements now in Orders Q"nd

(:ontrocts...

Alongsimilar lines. the Board has

nOled n November 30, 19~)4 advisory

frorn Ihe IIlbuquerque fiold office 10

DOE heodquarlers (M.S. Dienes 10 I.

Fitzt-;t!mldJ thaI (I hold hos heen plact.--d

on the radiation protection funr.:tional

appraisal process until DOE review and

approval of the implementation plans

for the role have been completed. There

is nO rnUonal justification for s~lch

deferrnt. Sud1 action suggests tllat field

personnel may havo been led 10 believe.

Ihat there will"be marked diflere"ces

between. those radiation protection

programS under tho I'\Ile and the

requirements unde.r existing Ordors

incorp'mated in contmct.s,

1'he' provisions ofthe contracts and

Ihe abov~menlionod adviseries by OOE

line m.a.nagcmentindicate that tha

illtegrateCJ,' usc of nuclear safely-telnted

Ru\es. Olders, Standards and guides in

defining and executing DOE·.safely

managom.ent program maY,not be

sufficlently.well understood by either

the M &·Ocontractors or D..OE ma.nagprs.

TillS issue was raised in !.he Board's

leller ofMay"6, 1994 10 the Department.

Given the siluation as described

above. the Board believes that further

OOE actions are needed to eDsum there

is no relaxation or commitments made

to achieye CO[Jlpliancc with

requirements in Orders wuite proposed

rules nrc undergohlg the dcvolopment

process. 'fhese actionsshould 31so

provide for smooth trans.itiofl of Orders.

to rules once promulgated. Townrd tlJat

end, the Board recommends that DOE~

(1) Widely disseminole lhe

information provided to the Board iIll

response to. Our May 6. 1994. letler on

DOE's Safely Manngemeot Program, and

take steps to ensure that key technical

and contracts personnel are weH

schooled in this top.ie,

(2) Promptly issue appropriate

directives_and procedures to DOE

Headquarters. field Offices and O&M

conlraetors which:.:.

(a) Embrace the basic prindple that

work atready commenced or p'anned to

develop and implement requirementS" ill

existing o'r revised Orders or S/RJDS

should continue while culoma.k.ing i.s

underway; ,

(b) Explain in detail Ihe"relationship

belween safety requirem..eitts contalncd

in Orders in O&M contracts and lhose

contained in new rules, nnd the process

by which a ndc may "supersede" parts.

or the entirely. of a safety Ordc"

(c) ExpL'lin thal compliance with a

rcquiremenl whetber in a rule', Qrd-er or

olher dii-eclive: is flol accolupUshed hy

submittal of an adequ'ate

imptl}fllcntalion plan but requires

completion or action prop""ecl hy thaI

plan:

(dJ Provide g.uidance to cOI\tradQ[snlld DOE program orficcs QU how to

coordilHlle impte.rncntation plans for

multiple requin!mtmts such a~ those in
federal Register

I Vol. 60. No.4I Friday. January 6. 1995I NOlices

Orders. rules. S/RIDS und other binding

directives; and.

(e) In the process of eliminating

duplicate requirements and in arranging

the remainIng ones along more user

friendly guidelines. which the Board

agrees is desirable, ensure that existing

requireme~ts that are necessary and

appropriate are not relaxed nor

eliminated. and schedule commilmcnts

for achieving compliance are not

delayed.

(3) Ensure thut compliance wilh the

minimal (ba,so.line) set of safety

requirements contained in Rules is not

construed 8S full compliance with all

necessary sofety requirements and docs

not displuce effort to dovelop und

implement through RIDS the best

nuclear safety requi'rements' and

practices embodied in rules. Orders,

stand8r4~1 and other safety directives.

(4) Cleurly establish such line.

oversight, and lcgal responsibilities for

review and approval of contractual

provisions specifying environment,

heullh and safety requirements for DOE

contractors to·ensure that the

requirements-basc·d.safety managemenl

program expected Iiy the DOE will be

uniformly developed and consistently

imposed across the ccmplex.

IJf;!fcn.~e Nuclear Fllciliiies Safely Board

December 29,1994.

The Honorable Hazel R. O'L,.ellry:

Secretory of Energy, Washington, DC 20585.

Dear Secretary O'l...cary: On December 29,

1994, the Defense Nudear Facililies Safety

Board, in accordance with 42 U.S.C.

22868(5). unanimously approved

Recommendation 94-5 wJVr;h is enclosed for

YO\lf considoration. Recommendatlon 94-5-

deRls with Integration of DOE Safety Rules.

Orders, and Other Requiremellts.

42 U.S.c. 2286d{a) requires the BoarcJ. aflCr

receipt by you, to promptly make this

recommendation available 10 the public in

the Department of Energy's re8ion~11 public

reading rooms.The Board believ'cs the

recommen.datiQn contains no information

which is classified or otherwise restricted, To

the extent this recommendatiOn docs not

include infonnatlon restricted by DOE under

the Atomic Energy Act of 1954, 42 U,S,C,

2161-G8. as amended. plua!>c arrange-to have

Ihis recommendation promptly placed on file

in y.our rogiollal pl,lblic reading rooms.

iho Board will publish this

recommel)datlon in the federal Register.

Sincerely,

lohn T. Conwny,

Chtlirman.

trR Doc. 95-363 filed 1-5-%: IUS ami

BILLING COOE 682O-KD-M

2091
APPENDIX B

REFERENCES

Pub. 1. No. 100-456 (9/29/88) National Defense Authorization Act for I<iscal Year 1989

Pub. L. No. 101-510 (11/5/90) National Defense Authorization Act for Fiscal Year 1991

Pub. L. 102-190 (12/6/91) National Defense Authorization Act for Fiscal Ycars 1992 and

1993

Pub. 1. 103-160 (11/30/93) National Defense Authorization Act for Fiscal Year 1994

10 C.F.R. Part 820, "Procedural Rules for DOE Nuclear Facilities," August 17,1993 (58

Fed. Reg. 43,680)

10 CFR Part 830, "Nuclear Safety Management," April 5,1994 (59 Fed. Reg. 15843)

10 C.F.R. Part 835, "Occupational Radiation Protection," December 14, 1993 (58 Fed.

Reg. 65,458)

Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d 581

(D.C. Cir. 1990)

Natural Resources Defensc Council. Inc. v. Defense Nuclear Facilities Safety Board, 969

F.2d 1248 (D.C. Cir. 1992), cert. dcnied, 113 S. Ct. 2332 (1993)

Brief for the Defense Nuclcar Facilities Safety Board, Natural Resources Defense Counci.l

v. Defense Nuclear Facilities Safety Board, 969 F.2d 1248 (D.C. Cir. 1992), cert. denied,

113 S. Ct. 2332 (1993)

Brief for the Defense Nuclear Facilities Safety Board in opposition to petition for a writ

of certiorari, Natural Resources Defense Council v. Dcfense Nuclear Facilities Safety

Board, 969 F.2d 1248 (D.C. Cir. 1992), cert. denied, 113 S.Ct. 2332 (1993)

Nuclear Protections and Safety Act of 1987, Report of the Committee on Governmental

Affairs, United States Senate on S.I 085, S. Rep. No. 173, 100th Cong., 1st Sess. (1987)

Nuclear Protections and Safety Act of 1987, Report of the Committee on Armed Services,

United States Senate on S.I 085, S. Rep. No. 232, 100th Cong., 1st Sess. (1987)

National Defense Authorization Act for Fiscal Year 1989, Report of the Committee on

Armed Serviccs, House ofRepresentatives on H.R.4264, H.R. Rep. No. 563, 100th Cong.,

2d Sess. (1988)

National Defense Authorization Act for Fiscal Year 1989. Conference Report to

Accompany H.R.448I, H.R. ConI. Rep. No. 989, 100th Cong., 2d Sess. (1988)
Nominations Before the Senate Armed Services Committee, S. Rep. No. 537, 101st Cong.,

1st Sess. (1989)

National Defense Authorization Act for Fiscal Year 1991, Committee on Armed Services,

United States Senate, Report to Accompany S.2884, S. Rep. No. 384, 10 Ist Cong., 2d

Sess. (1990)

National Defense Authorization Act for Fiscal Year 1991, Conference Report to

Accompany H.R.4739, H.R. Conf. Rep. No. 923, IOlst Cong., 2d Sess. (1990)

National Defense Authorization Act for Fiscal Years 1992 and 1993, Committee on

Armed Services, United States Senate, Report to Accompany S.1507, S. Rep. No. 113,

102d Cong., 1st Sess. (1991)

National Defense Authorization Act for Fiscal Years 1992 and 1993, Conference Report

to Accompany H.R.2100, H.R. Conf. Rep. No.31!, 102d Cong., 1st Sess. (1991)

National Defense Authorization Act for Fiscal Year 1994, Committee on Armed Services,

United States Senate, Report to Accompany S. 1298, S. Rep. No. 112, 103d Cong., 1st

Scss. (1993)

National Defense Authorization Act for Fiscal Year 1994, Conference Report to

Accompany H.R.2401, H.R. Conf. Rep. No. 357, 103d Cong., 1st Sess. (1993)

134 Congo Rec. H2840 (daily ed. May 3, 1988) (statement of Rep. Sharp)

134 Congo Rec. H2846 (daily ed. May 3, 1988) (statement of Rep. Eckert)

137 Congo Rec. S9359 (daily ed. July 9, 1991)

137 Congo Rec. SI1442 (daily ed. July 31,1991)

137 Congo Rec. HI0384 (daily ed. November 18,1991)

140 Congo Rec. S822 (daily ed. July I, 1994)

Testimony of the DNFSB, FY 1991 Appropriations Hearing, House Committee on

Appropriations, Subcommittee on Energy and Water Development, March 13, 1990

Testimony of the DNFSB, FY 1991 Atomic Energy Defense Activities Budget,

Management and Oversight Hearing, DOE Defense Nuclear Facilities Panel, House Armed

Services Committee, March 22, 1990

Testimony of the DNFSB, Hearings on Plans, Progress and Experience of the DNFSB,

Management and Oversight Hearing, Subcommittee on Strategic Forces and Nuclear

Deterrence, Senate Committee on Armed Services, March 27, 1990

2
Testimony of John T. Conway, Chairman DNFSB, Hearings on Safety of High-level

Radioactive Waste Storage Tanks at DOE Facilities, Senate Committee on Governmental

Affairs, July 30, 1990

Testimony of the DNFSB, Hearing on the DNFSB, Subcommittee on Energy and Water

Development, House Committee on Appropriations, February 26, 199J

Testimony of John T. Conway, Chairman, DNFSB, Waste Isolation Pilot Plant Hearing,

Subcommittee on Energy and the Environment, House Committee on Interior and Insular

Affairs, April 15, 1991

Testimony of the ONFSB, FY 1992 and 1993 Authorization Hearing, Subcommittee on

Strategic Forces and Nuclear Deterrence, Senate Committee on Armed Services, June 1I,

1991

Testimony of the DNFSB, Waste Isolation Pilot Plant Hearing, DOE Defense Nuclear

Facilities Panel, House Committee on Armed Services, June 18, 1991

Testimony of the DNFSB, Hearing on DOE: Environment, Safety and Health;

Environmental Restoration and Waste Management, Subcommittee on Energy and Water

Development, House Committee on Appropriations, March 2, 1992

Testimony ofJohn T. Conway, Chairnlan, DNFSB, Hearings on DOE Defense Programs

for FY-1993, House Committee on Armed Services, April 6, 1992

Testimony of John T. Conway, Chairman, DNFSB, Hearings on Shipment of Spent

Nuclear Fuel from U.S. Navy Ships and Submarines to Idaho National Engineering

Laboratory, Subcommittee on Nuclear Deterrence, Arms Control and Defense Intelligence,

Senate C0IlU11ittee on Armed Services, July 27, 1993

Testimony of John T. Conway, Chairman, DNFSB, Hearings on DOE's Management of

Enviromnental Cleanup at the DOE's Fernald Nuclear Facility, Subcommittee on Energy

Investigations and Oversight, House Com.mittee on Energy and Commerce, December I,

1993

Testimony of John T. Conway, Chairman, DNFSB, Hearings on H.R. 3920, Federal

Nuclear Facilities Licensing and Regulation Act, Subcommittee on Energy and Mineral

Resources, House Committee on Natural Resources, March 7, 1994

Testimony of DNFSB, Hearings on DOE Atomic Energy Defense Activities,

Subcommittee on Energy and Water Development, House Committee on Appropriations,

March 15,1994

Testimony of DNFSB, Hearings on FY-95 Authorizations for DOE Defense Programs,

Committee on Armed Services, March 22, 1994

3
Testimony ofJohn T. Conway, Chairman, DNFSB, Hearings on DOE Health and Safety

Strategy, Subcommittce on nergy, House COll1l11ittec on Sciencc, Space and Teclmology,

September 21, 1994

Activities ofthe Defense Nuclear Facilities Safety Board, a Report to Congress. March 28,

1990

Annual Report to Congress, Defense Nuclear Facilitics Safety Board, February 1991

Annual Report to Congress. Defense Nuclear Facilities Safety Board, February 1992

Annual RepOit to Congress, Defense Nuclear Facilities Safety Board. April 1993

Nmual Report to Congress, Defense Nuclear Facilities Safety Board, February 1994

Annual Report to Congress, Department of Energy Activities Relating to the Defense

Nuclear Facilities Safety Board in 1990, March 1991

Annual Report to Congress, Depaltment of Energy Activities Relating to the Defense

Nuclear Facilitics Safety Board, Second Annual Report u Calendar Year 1991, January

1992

NJnual Report to Congress. Department of Energy Activities Relating to the Defense

Nuclear Facilities Safety Board. Calendar Year 1992, January 1993

Annual Report to Congress, Department of Energy Activities Relating to the Defense

Nuclear Facilities Safety Board, Calendar Year 1993, February 1994

Defense Nuclear Facilities Safety Board Recommendation 90-1, "Operator Training at

Savannah River Facilities Prior to Restart of K, L, and P Reactors," 55 Fed. Reg. 7022

(1990)

Defense Nuclear Facilities Safety Board Recommendation 90-2, "Design, Construction,

Operation and Decommissioning Standards at Certain Priority DOE Facilities", 55 Fed.

Reg. 9487 (1990)

Defense Nuclear Facilities Safety Board Recommendation 90-3, "Safety at Single-Shell

Hanford Waste Tanks," 55 Fed. Reg. 11,994 (1990)

Defense Nuclear Facilities Safety Board Recoll1l11endation 90-4, "Operational Readiness

Review at Rocky Flats Plant," 55 Fed. Reg. 19,644 (1990)

Defense Nuclear Facilities Safety Board Recommendation 90-5, "Systematic Evaluation

Program at the Rocky Flats Plant," 55 Fed. Reg. 21,429 (1990)

Defense Nuclear Facilities Safety Board Recommendation 90-6, "Criticality Safety at

Rocky Flats Plant," 55 Fed. Reg. 23,584 (1990)

4
Defense Nuclear Facilities Safety Board Recommendation 90-7, "Safety at the SingleShell Hanford Waste Tanks," 55 Fed. Reg. 42,243 (1990)

Defense Nuclear Facilities Safety Board Recommendation 91-1, "Strengthening the

Nuclear Safety Standards Program for DOE's Defense Nuclear Facilities," 56 Fed. Reg.

10,546 (1991)

Defense Nuclear Facilities Safely Board Recommendation 91-2, "Closure of Safety Issues

Prior to Restart of K-Reactor at the Savannah River Site", 56 Fed. Reg. 13,637 (I991)

Defense Nuclear Facilities Safety Board Recommendation 91-3, "DOE's Comprehensive

Readiness Review Prior to Initiation ofthe Test Phase at the Waste Isolation Pilot Plant,"

56 Fed. Reg. 19,988 (1991)

Defense Nuclear Facilities Safety Board Rccommendation 91-4, "DOE's Operational

Readiness Review Prior to Resumption ofP]utonium Operations at the Rocky Flats Plant,"

56 Fed. Reg. 50,711 (1991)

Defense Nuclear Facilities Safety Board Recommendation 91-5, "Power Limits for KReactor Operation at the SavalUlah River Site," 56 Fed. Reg. 67,068 (1991)

Defense Nuclear facilities Safety Board Recommendation 91-6, "Radiation Protection for

Workers and the General Public at DOE Defense Nuclear Facilities," 56 Fed. Reg. 67,066

(1991)

Dcfense Nuclear Facilitics Safety Board Rccommendation 92-1, "Operational Readiness

of the HB·Line at the Savannah River Site," 57 Fed. Reg. 22,732 (1992)

Defense Nuclear Facilitics Safety Board Recommendation 92-2, "DOE's Facility

Representative Program at Defense Nuclear Facilities," 57 Fed. Reg. 23,576 (1992)

Defense Nuclear Facilities Safety Board Recommendation 92-3, "Operational Rcadiness

Reviews for the HB·Line at the Savannah River Site," 57 Fed. Reg. 23,578 (1992)

Defense Nuclear Facilities Safety Board Recommendation 92-4, "Multi-Function Waste

Tank Facility at thc Hanford Site," 57 fed. Reg. 31,177 (1992)

Defense Nuclear Facilities Safety Board Recommendation 92-5, "Discipline of Operations

in a Changing Defcnse Nuclear Facilities Complex," 57 Fcd. Reg. 39,191 (1992)

Defense Nuclear Facilities Safety Board ReconUllendation 92-6, "Operational Readiness

Reviews," 57 Fed. Reg. 40,181 (1992)

Defense Nuclear Facilities Safety Board Recommendation 92-7, "Training and

Qualification," 57 Fed. Reg. 44,561 (1992)

5
Defense Nuclear Facilities Safety Board Recommendation 93-1, "Standards Utilization in

Defcnse Nuclear Facilities," 58 Fed. Reg. 6389 (1993)

Defense Nuclear Facilities Safety Board Recommendation 93-2, "The Need for Critical

Experiment Capability," 58 Fed. Reg. 16,654 (1993)

Defcnse Nuclear Facilities Safety Board Recommcndation 93-3, "Improving DOE

Technical Capability in Defense Nuclear Facilities Programs," 58 Fed. Reg. 32,109 (1993)

Defense Nuclear Facilities Safety Board Recommendation 93-4, "DOE's Management and

Direction of Environmental Restoration Management Contracts," 58 Fed. Rcg. 34,247

(1993)

Defcnse Nuclear Facilities Safcty Board Recommendation 93-5, "Hanford Waste Tanks

Characterization Studies," 58 Fed. Reg. 40,409 (1993)

Defense Nuclear Facilities Safety Board Recommendation 93-6, "Maintaining Access to

Nuclcar Weapons Expertise in the Defense Nuclear Facilities Complcx," 58 Fed. Reg.

68,123 (1993)

Defense Nuclear Facilities Safety Board Recommendation 94-1, "Improved Schedule for

Remediation in the Defense Nuclear Complex," 59 Fed. Reg. 28,848 (1994)

Defense Nuclear Facilities Safety Board Reconm1endation 94-2, "Conformance With

Safety Standards at DOE Low-Level Nuclear Waste and Disposal Site," 59 Fed. Reg.

47,309 (1994)

Defense Nuclear Facilities Safety Board Reconunendation 94-3, "Rocky Flats Seismic and

Systems Safety," 59 Fed. Reg. 50,581 (1994)

Defensc Nuclear Facilities Safety Board Recommendation 94-4, "Deficiencies III

Criticality Safety at Oak Ridge Y-12 Plant," 59 Fed. Reg. 50,732 (1994)

Defense Nuclear Facilities Safety Board Recommendation 94-5, "Integration of DOE

Safety Rules, Orders, and Other Requirements," 60 Fed. Reg. 2089 (1995)

Transcript of Defense Nuclear Facilities Safety Board public hearing held for Rocky Flats

Environmental Technology Site, October 4, 1994

Transcript of Defense Nuclear Facilities Safety Board public hearing held for Idaho

National Engineering Laboratory, October 6, 1994

Transcript of Defense Nuclear Facilities Safety Board public hearing held for Fernald

Environmental Management Project and Mound Plant, October 12, 1994

Transcript of Defense Nuclear Facilities Safety Board public hearing held for Hanford

Site, October 25, 1994

6
Transcript of Defense Nuclear Facilities Safety Board public hearing held for Sandia

National Laboratory, Los Alamos National Laboratory and WIPP, October 27, 1994

Transcript of Defense Nuclear Facilities Safety Board public hearing held for Oak Ridge

Reservation, November 1, 1994

Transcript of Defense Nuclear Facilities Safety Board public hearing held for Savannah

River Site, November 3, 1994

Transcript of Defense Nuclear Facilities Safety Board public hearing held for Pantex,

October 19, 1994

Transcript of Defense Nuclear Facilities Safety Board public hearing with Secretary of

Energy, December 6, 1994

Letter to General Counsel from Administrative Conference of the United States, dated

January 2, 1991 regarding suggestions on the Board's draft proposed rules under the

Government in the Sunshine Act

Memorandum to Secretarial Officers and Managers of Field Elements from Secretary

O'Leary dated December 2, 1994, "Major Initiative on Nuclear Safety Accountability"

Memorandum for Heads of Headqumters and Field Elements from Secretary O'Leary

dated February 9, 1994, "Compliance With Department of Energy Orders"

Memorandum to DOE Operations Offices from V. Reis dated May 27, 1994, regarding

Defense Programs Implementation Guidance for the Final Rule on Occupational Radiation

Exposw'e

Memorandum to J. Fitzgerald from M.S. Dienes dated November 30, 1994, regarding

Environmental, Safety and Health (ES&H) Assessment Schedule

Defense Nuclear Facilities Safety Board letter to Secretary O'Leary dated May 6, 1994

Letter to John Conway from Hazcl O'Leary dated October 21, 1994, "U.S. Department

of Energy Response to Defense Nuclear Facilities Safety Board Letter of May 6, 1994"

Letter to John Conway from Hazel O'Leary dated December 9, 1994 torwarding prepared

testimony for December 6, 1994 public hearing at the Defense Nuclear Facilities Safety

Board

Letter to John Conway from M.B. Whitaker (DOE Departmental Representative to the

Defense Nuclear Facilities Safely Board) dated December 8, 1994 forwarding

organizational charts for the Office of Environment, Safety and Hcalth

Standards and Requirements Identification Docllment (S/RlD), Solid Waste Disposal

Division, Westinghouse Hanford Company, IP-ll20, Rev. 0, November 30, 1994

7
DOE Request for Proposal, DE-RP34-94RF00825, Rocky Flats, July 12, 1994

Reactor Accidents: Nuclear Safety and the Role of Institutional Failure, David Mosey,

Nuclear Engineering International Spccial Publications (1990)

The Teclulology of Nuclear Safety, Volumc I, TJ. Thompson and J.G. Beckerely,

Massachusetts Institute of Technology (1964)

Report of the President's Commission on the Accident at Three Mile Island, John G.

Kenemy, et aI., U.S. Government Printing Office, Washington (1979)

Three Mile Island: A Report to the Commissioners and to the Public, Vol. I and II, Pt.

1,2, and 3, NUREG/CR-1250, M. Rogovin, Director, Nuclear Regulatory Commission

Special Inquiry Group, U.S. Nuclear Regulatory Commission

Action Plan Developed as a Result of the TMI Accident, NUREG-0660, U.S. Nuclear

Regulatory Commission (1980)

Clarification of TMl Action Plan Requirements, NUREG-0737 U.S. Nuclear Regulatory

Commission (1980)

TMI-Related Requirements for New Operating Licenses, NUREG-0694, U.S. Nuclear

Regulatory Commission (1980)

Guidelines for Utility Management Structure and Technical Resources (Draft Report for

Interim Use and Comment). NUREG-073I , U.S. Nuclear Regulatory Commission (1980)

An Assessment of the GPU Nuclear Corporation and Senior Management and Its

Competence to Operatc TMl-l, Admiral H.G. Rickover, USN (November 19,1983)

Standard Review Plan, NUREG-0800, U.S. Nuclear Regulatory Commission, Office of

Nuclear Reactor Regulation (1989)

Standard Rcview Plan, NUREG-0800, U.S. Nuclear Regulatory Commission, Office of

Nuclear Reactor Regulation (1989)

Standard Review Plan for Low-Level Waste Disposal Licensing Program, NUREG-1200,

U.S. Nuclear Regulatory Commission, Office of Nuclear Material Safety and Safeguards

(1994)

Proposed Method for Regulating Major Materials Licensees, NUREG-1324, U.S. Nuclear

Regulatory Commission (1992)

Safety Culture. A Report by the International Nuclear Safety Advisory Group,

International Atomic Energy Agency Safety Series No. 75-INSAG-4 (1991)

8
Basic Safcty Principles for Nuclear Power Plants, A Report by the International Nuclear

Safety Advisory Group, International Atomic Energy Agency Safety Serics No. 75-

INSAG-3 (1988)

A Safety Assessment of Department of Energy Nuclear Reactors (Crawford Report),

DOEIUS-0005, U.S. Department of Energy (1981)

Safcty Issues at the Dcfense Production Reactors, National Research Council, National

Academy Press (October 1987)

Autonomy, Independence, and Social Control; NASA and the Space Shuttle Challenger,

Diane Vaughan, Administrative Sciencc Quarterly, 35 (1990):225-257

Promoting a Change in Safety Culture: Selin's View, Nuclear Engineering International,

Vol 39, No. 480, July 1994

RCPOlt of the Presidential Commission on the Space Shuttle Challenger Accident,

Washington D.C., June 6, 1986

The Nuclear Weapons Complcx: Management for Health, Safety, and the Environment,

National Research Council, National Academy Press (1989)

Status of DOE's Reorganization onts Safety Oversight Function, GAO/RCED-90-82BR,

United States General Accounting Office (1990)

Management Reform: Implementation of the National Performance Rcview's

Recoll1l11endations, GAO/OCG 95-1, United States General Accounting Office (1994)

Nuclear Health and Safety: Consensus on Acceptable Radiation Risk to the Public is

Lacking, GAO/RCED 94-190, United States General Accounting Office (1994)

Nuclear Cleanup: Completion of Standards and Effectiveness of Land Use Planning are

Uncertain, GAO/RCED 94-144, United States General Accounting Office (1994)

Testimony, Managing DOE: Government Property Worth Millions of Dollars is Missing,

GAOIT-RCED 94-309, United States General Accounting Office (1994)

Energy Management: DOE's Efforts to Manage Overtime Costs Have Been Limited,

GAO/RCED 94-282, United States General Accounting Office (1994)

Nuclear Waste: Comprehensive Review of the Disposal Program is Needed, GAO/RCED

94-299, United States General Accounting Office (1994)

Testimony, Health and Safety: Protecting Workers and the Public Continues to Challenge

DOE, GAOIT-RCED 94-283, United States General Accounting Office (1994)

9
Nuclear Waste: Foreign Countries' Approaches to High-Level CHLW) Storage and

Disposal, GAO/RCED 94-J72, United States General Accounting Office (1994)

DO : Management Changes Needed to Expand Use ofhmovative Cleanup Technologies,

GAOIRCED 94-205, United States General Accounting Office (1994)

Nuclear Regulation: Action Needed to Control Radioactive Contamination at Sewage

Treatment Plants, GAO/RCED 94-133, United States General Accounting Office (1994)

Nuclear Safety: Unresolved Issues Could Impair DOE's Ovcrsight Effectiveness,

GAOIRCED 94-129, United States General Accounting Office (1994)

Department of Energy: Status ofDOE's Property Management Program, GAO/RCED 94-

l54FS, United States General Accounting Office (1994)

Nuclear Waste: Much Effort Needed to Meet Federal Facility Compliancc Act's

Requirements, GAO/RCED 94-179, Unit~d States General Accounting Office (1994)

DOE: Challenges to Implementing Contract Reform, GAO/RCED 94-150, United States

General Accounting Office (1994)

Energy Management: Inadequate DOE Monitoring of Contractor's Acquisitions From

Af1iliates, GAO/RCED 94-83, United States General Accounting Office (1994)

DOE: The Property Management System at Rocky Flats is Inadequate, GAO/RCED 94-

77, United States General Accounting Office (1994)

Health and Safety: DOE's Implementation of a Comprehensive Health Surveillance

Program is Slow, GAO/RCED 94-47, United States General Accounting Office (1994)

Testimony, DOE's National Laboratories: Adopting New Missions and Managing

Effcctively Pose Significant Challenges, GAOIT-RCED 94-113, United States General

Accounting Oftlce (1994)

Energy Management: Control Over the Livermore Laboratory's Indirect Costs are

Inadequate, GAO/RCED 94-34, United States General Accounting Office (1994)

Nuclcar Science: Developing Technology to Reduce Radioactive Waste May Take

Decades and Be Costly, GAO/RCED 94-16, United States General Accounting Office

(1994)

DOE Management: Funds for Maintaining Contractor's Operations Could be Reduced and

Bctter Controlled, GAO/RCED 94-27, United Statcs General AccolUlting Office (1994)

Nuclear Waste: Funds Spent to Identify a Monitored Retrievable Storage Facility Site,

GAO/RCED 93-199, United States General Accounting Office (1993)

10
Nuclear Health and Safety: Examples of Post-World War II Radiation Releases at U.S.

Nuclear Sites, GAO/RCED 94-5IFS, United States General Accounting Office (1993)

Testimony, DOE Management: Implementing the Environmental Restoration Management

Contractor Concept, GAOrr-RCED 94-86, Unitep States General Accounting Office

(1993)

Nuclear Weapon: Safety, Technical and Manpower Issues Slow DOE's Disassembly

Efforts, GAOIRCED 94-9, United States General Accounting Office (1993)

Energy Management: Additional Uncosted Balances Could Be Used To Meet Future

Budget Needs, GAO/RCED 94-26, Unitcd States General Accounting Office (1993)

Nuclear Waste: Overhead Costs at the DOE's Savannah River Site, GAO/RCED 94-13FS,

United States General AccOlmtillg Office (1993)

Testimony, Safety and Health: Worker Safety and Health Oversight Issues Facing DOE,

GAO/T-RCED 94-54, Unitcd States General Accounting Office (1993)

Nuclear Materials: Nuclear Arsenal Reductions Allow Consideration ofTritium Production

Options, GAOIRCED 93-189, United States General Accounting Office (1993)

DOE Management: Consistent Cleanup Indemnification Policy is Needed, GAO/RCED

93-167, United States General Accounting Office (1993)

Department of Energy: Management Problems Require a Long-Term Commitmcnt to

Change, GAO/RCED 93-72, United States General Accounting Office (1993)

Nuclear Regulation: Cleanup Delays at Two Radioactive Waste Sites in Ohio,

GAO/RCED 93-156, United States General Accounting Office (1993)

Dcpartment of Energy: Cleaning Up Inactive Facilities Will Be Difficult, GAOIRCED 93-

149, United States General Accounting Office (1993)

Nuclear Regulation: NRC's Nuclear Materials Program Needs Improvement to Protect

Public Health and Safety, GAO/RCED 93-51, United Statcs General AccOlmting Office

(1993)

Nuclear Waste: Yucca Mountain Project Management and Funding Issues, GAO/T-RCED

93-58, United States General Accounting Office (1993)

Safety arId Health: Key Independent Oversight Program at DOE Needs Strengthening,

GAOIRCED 93-85, United States General Accounting Office (1993)

Nuclear Regulation: Better Criteria and Data Would Help Ensure Safety of Nuclear

Materials, GAO/RCED 93-90, United States General Accounting Office (1993)

11
Nuclear Waste: Yucca Mountain Project Behind Schcdule and Facing Major Scientific

Uncertainties, GAO/RCED 93-124, United States General Accounting Office (1993)

Nuclear Wastc: Hanford Tank Wastc Program Needs Cost. Schedule. and Management

Changes, GAO/RCED 93-99, United States General Accounting Office (1993)

Energy Issues: Transition Series, GAO/OCG 93-13TR, United States General Accounting

Office (1992)

Nuclear Security: Safeguards and Sccurity PlamJing at DOE Facilities Incomplete,

GAO/RCED 93-14, United States General Accounting Office (1992)

Nuclear Security: Improving Security Deficiencies at DOE's Weapons Facilities,

GAO/RCED 93-10, United States General Accounting Office (1992)

DOE: Project Management at Rocky Flats Plant Needs Improvement, GAO/RCED 93-32,

United States General Accounting Office (1992)

DOE: Better Information Resources Management Needed to Accomplish Missions,

GAO/IMTEC 92-53, United States General Aceolmting Office (1992)

Nuclear Materials: Removing Plutonium Residues From Rocky Flats Plant Will Be

Difficult and Costly, GAO/RCED 92-219, United States General Accounting Office

(t 992)

Nuclear Waste: Improvements Needed In Monitoring Contaminants In Hanford Soils,

GAO/RCED 92-149, Unitcd States General Accounting Oft)ce (1992)

DOE Management: Impediment to Enviromuental Restoration Management Contracting,

GAO/RCED 92-244, United States General Accounting Office (1992)

Nuclear Science: Consideration of Accelerator Production of Tritium Requires R&D,

GAO/RCED 92-154, United States General Accounting Office (1992)

Nuclear Waste: Defense Waste Processing Facility (DWPF)- Cost, Schedule, and

Technical Issues, GAO/RCED 92-183, United States General Accounting Office (1992)

Nuclear Waste: Ouestionable Uses of Program Funds at Lawrence Livermore Laboratory.

GAO/RCED 92-157, United States General Accounting Office (t 992)

Nuclear Health and Safety: More Can Be Done To Better Control Environmental

Restoration Costs, GAO/RCED 92-71, United States General Accounting Of1ice (1992)

Cleanup Technology: Better Management for DOE's Technology Development Program,

GAO/RCED 92-145, United States General Accounting Office (1992)

12
Testimony, Nuclear Weapons Complex: GAO's Vicws of Reconfiguring the Complex,

GAO/T-RCED 92-49, United States General Accounting Office (J 992)

Testimony, Cleanup Technology: DOE's Management of Environmental Cleanup

Technology, GAOrr-RCED 92-29, United Statcs General Accounting Office (1992)

Nuclear Wastc: Weak DOE Contract Management Invited TRUPAC-II Setbacks, United

States General Accounting Office (1992)

Fact Sheet, Nuclear Health and Safety: Radiation Events at DOE's Idaho National

Engineering Laboratory (INEL), GAOIRCED 92-64FS, United States General Accounting

Office (1992)

Nuclear Weapons Complex: Major Safety, Environmental, and Rcconfiguration Issues

Facing DOE, GAOrr-RCED 92-31, United States General Accounting Office (J 992)

Nuclear Security: Property Control Problcms at DOE's Livermore Laboratory Continue,

GAO/RCED 91-141, United States General Accounting Office (1991)

Nuclear Science: Accelerator Technology for Tritium Production Needs Further Study,

GAO/RCED 92-1, United States General Accounting Office (1991)

Nuclear Health and Safety: Environmental, Health and Safety Practices at Naval Reactor

Facilities, GAO/RCED 91-157, United Statcs General Accounting Office (1991)

Uranium Enrichment: DOE Nceds to Pursue Alternative'Alvis' Deployment Options,

GAO/RCED 91-88, United States General Accounting Office (1991)

Nuclear Safety and Health: Environmental Problems at DOE's Idaho National Engineering

Laboratory, GAOIRCED 91-56, United States General Accounting Office (1991)

Nuclear Waste: Hanford Single-Shell Tank Leaks Greater Than Estimated, GAO/RCED

91-177, Unitcd States General Accounting Office (1991)

Nuclear Safety: Potential Security Weaknesses at Los Alamos and Other DOE Facilities,

GAO/ReED 91-12, United States General Accounting Office (1990)

Nuclear Safety and Health: Counterfeit and Substandard Products arc a Government-Wide

Concern, GAO/RCED 91-16, United States General Accounting Office (1990)

Testimony, Nuclear Waste: Delays in Addressing Environmental Requirements and New

Safety Concerns Affect DOE's Waste Isolation Pilot Plant (WIPP), GAOrr-RCED 91-67,

United States General Accounting Office (1990)

Nuclear Waste: Problems Associated With DOE's Inactivc Waste Sites, GAO/RCED 88-

189, United States General Accounting Office (1988)

13
Nuclcar Hcalth and Safety: Dealing With Problems in the Nuclear Defense Complex

Expected to Cost Over $100 Billion, GAO/RCED 88-197BR, United States General

Accounting Office (1988)

Nuclear Safety: The Defense Nuclear Facilities Safety Board's First Year of Operation,

GAO/RCED 91-54, United States General Accounting Office (1991)

Nuclear Health and Safety: Oversight at DOE's Nuclear Facilities Can Be Strengthened,

GAO/RCED 88-137, Unitcd States General Accounting Office (1988)

Testimony. Key Elements ofEffective Independent Oversight ofDOE's Nuclear Facilities,

GAOIT-RCED 88-6, United States General Accounting Office (1987)

Nuclear Waste: Umesolved Issues Concerning Hanford's Waste Management Practices,

GAO/RCED 87-30, United States General Accounting Office (1986)

Nuclear Energy: Environmcntal Issues at DOE's Defense Nuclear Facilities, GAOIRCED

86-I92, United States General Accounting Office (1986)

Nuclear Safety: Comparison of DOE's Hanford N-Reactor with the Chernobyl Reactor,

GAO/RCED 86-213BR, United States General Accounting Office (1986)

Nuclear Waste: Impact of Savannah River Plant's Radioactive Waste Management

Practices, GAO/RCED 86-143, United States General Accounting Office (1986)

Nuclear Energy: A Compendium of Relevant GAO Products on Regulation. Health and

Safety. GAO/RCED 86-132, United States General Accounting Office (1986)

Nuclear Waste: Department ofEnergy's Transuranic Waste Disposal Plan Needs Revision,

GAO/RCED 86-90, United States General Accounting Office (1986)

Nuclear Safety: Safety Analysis Reviews for DOE's Defense Facilities Can be Improved,

GAO/RCED 86-175, United States General Accounting Office (1986)

Environment. Safety and Health: Status of Department of Energy's Implementation of

1985 Initiatives, GAO/RCED 86-68FS, United States General Accounting Office (1986)

Environment, Safety and Health: Environment and Workers Could Be Better Protected

at Ohio Defense Plants, GAO/RCED 86-61, United States General Accounting Office

(1985)

DOE's Plutonium Facility, GAO/RCED 85-3, United States General Accounting Office

(1985)

Department of Energy Acting to Control Hazardous Waste At Its Savannah River Nuclcar

Facilities, GAO/RCED 85-23, United States General Accounting Office (1984)

14
DOE's Safety and Health Oversight Program At Nuclear facilities Could Be

Strengthened, GAOIRCED 84-50, United States General Accounting Office (1983)

Decommissioning Retired Nuclear Reactors At Hanford Reservation, GAO/RCED 83-104,

United States Gcncral Accounting Office (1983)

Cleaning Up Nuclear Facilities- An Aggressivc and Unified Federal Program Is Needed,

GAO/EMD 82-40, United States General Accounting Office (1982)

GAO's Response to DOE on EMD-8J-J08, "Better Oversight Needed for Safety and

Health Activities at DOE's Nuclear Facilities, GAO/EMD 82-36, United States General

Accounting Office (1982)

Congress Should Increase Financial Protection to the Public From Accidents at DOE

Nuclear Operations, GAOIEMD 81 -JII, United States Gencral Accounting Office (1981)

Bettcr Oversight Needed for Safety and Health Activitie At DOE's Nuclear Facilities,

GAO/EMD 81-108, United States General Accounting Office (1981)

Department of Energy's Safety and Health Program for Enrichment Plant Workers Is Not

Adequately Implemented, GAO/EMD 80-78, United States General Accounting Office

(1980)

Decommissioning the I-Ianford Reactor, GAO/EMD 79-20, United States General

Accounting Office (1979)

Cleaning Up the Department of Energy's Nuclear Weapons Complex, Congress of the

United States Congressional Budget Office (1994)

Complex Cleanup, Office of Technology Assessment

15
APPENDIX C

I>OLICY STATEMENT NO. I
43393 Feder"l Register I Vol. 55. No. 209 I Monday, October 29, 1990 I Notices

.'

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

Criteria lor Judging the Adequacy 01

DOE Responses and Implementation

Plans lor DNFSB Recommendations

AGENCY: Defense Nuclear facilities

Safety Board.

ACTION: Notice of Board adoption of

policy guidance.

SUMMARY: The Defense Nuclear

Facilities Safety Board has unanimously

adopt(~d a policy statement which

eSlablishes the criteria that the Board

will use for judging I·he adequacy of

Department of Energy (DOE) responses

to. and implementation plans for, Board

.tecommenda tions.

FOR FURTHER INFORMATION CONTACT:

Robert M. Andersen, General Counsel.

Defense Nuclear Facj}iliea Safety Board,

625 Indiana Avenue. NW., Suite 700,

Washingl.on, DC 20004. (202) 201Hl387.

SUPPLEMENTARY INFORMATION: The

Defense Nuclear Facilities Safety Board

issues recommendations to the

Secr~tary of tho DepArtrnent or EIl~q!lY

and to the P"esident regarding public

health and safety at DOE's defense

nuclear facilities. The Board's c::nabling

statute requires the Secretary of energy

to c:ither accept or reject Boatd

recommendations and to subsequently

develop implementation plans for those

portions of Board recommendations

which nre accepted. The Board has now

received DOE responses to six of the

first seven recommendations made to

the Secretary and has reviewed the first

five implementation plans submitted by

DOE..

This Defense Nuclear Facilities Safely

Board Policy Stalemen, tpS-1j, Ih.

Board's first, will guide the board and its

staff in evaluating Ibe adequ(Jcy of DOE

responses and Implementation plans, as

well Os assist the Board in structuring

appropriate followpup Dction in the

event a rccommendlition is not fully Of

adequately addressed in ODE's

response and implementation plan.

Furthermorc, the slatement formally

identifies, for the benefit of DOE and the

public. the Board's expectarions

regarding the elements the Board

believes nrc necessary for an adequate

response and implementation plan,

Policy Statement

Criteria for fudsiilS tl>e Adequacy of

DOE Responses and Implementation

Plans for DNF'SB Recommondatjon~

The Board's authorizing statute

requires the secretary of Energy to

respond to each Board recommendation

and to subsequently prepare an

implementation plan for those portions

of the recommcndation that DOr::

accepts. Th. Slatute allow. the Doord to

USe its discretion and judgment in

assessing the adequacy of DOE

responses and implementation plans.

I. Evaluating DOE Responses

The statute requires the Secretary of

Energy to "transmit his respon.. 10 the

Board within 45 days after the date of

publication [in the Federal n.egister]

••• of the notice with respect to such

recommemlation Or within such

additional period, not to exceed 45 days,

as tl.'e Board may grant." The Act

anticipeles responses which accept the

Board's recommendations. and

responses which reject the Doan:!'s

recommendations, in whole or in part.

As we have already learned from DOE's

responses to the Board's first six

recommendations, however, there is a

whole range of possible written

responses that the Board must prepared

to deal with in the future.

For example. DOJ;: may choose to rely

upon a response letter which simply

states that the Secretary agrees with or

accepts a recommendation of the Board.

Such action constitutes an unconditional

acceptance of the Uoard's

recommendalion, and acquiesces in Ihe

Board's interpretalion of the

recommendation's terms and

requirements, Any subsequent

contradiction or retrenchment for the

response's unconditional acceptance in

the Implementalion plan will ordinarily

be unacceptable to the Board. Therefore.

it is far preferable to air any real

differences that DOE may have with the

recommendation in the response itself.

Moreover, preliminary discussions

between the Doard. ils staff, nnd DOF.

prior to the Secretary's issuance flf n

final response Can avoid confusion,

disputes, mJS\lnderstanding, and wasted

effort laler in the process,

11 should be noted that a response

which rejects porlions of n

recommendation may be Dn adequate

response if. in the Board's judgment,

sound reaSOns are given for rejecting Ihe

recommendation, and alternative means

of prOleeting public heallh and safely

are specified. On the other hand, an

evasive, nonresponsive, ambiguous. or

unclear response which is labeled an

acceplance by DOE Is nol adequale. The

Board recognizes that a flawed

response, if left uncorrected. will only

lead to further problems in the

implementation plan,

The following types of DOE responses

may be encountered by the Boord:

1. A response which 'says it is an

. acceptance, but by its language or terms

in fact rejects part of the

recommendation.

2, Ambiguous responses that could be

interpreted either os acceptance or

rejection of the recommendation,

3, Failure to address certain issues.

4, Unqualified rejection of the entire

recommendation,

5. Silence, Or no response,

6. Unconditional acceptance of the

entire recommendation consistent with

the terms set by the Board.

Comparing DOE responses against

this list of response types will assist the

Uoard in sorting out actual DOE

acceptances from rejections. A valid

acceptance is filed in a timely manner

and exhibits three key fealures: (1) an

understanding of what is being asked or

recommended; (2) a commilment by

DOE to take action to meet the

recommendation: and (3) specification

of whal DOE Intends to do .0 that Ihe

Board can detennine if all material

tenns of the recommendation will be

met, rather than avoided.

DOE's response need not be detailed

Or long. provided the Board is satisfied

Ih.t DOE undorstand, whall' being usked tmd intends to accomplish the

recommended action in n timely

manner, If a response Batisfies the

above three requirements, however. it

need not prosenllhe details of how and

when the recommendation will be metthat is the purpose of the

implementation plan.

II, Evaluating DOE's Implementation

Plan

As with responses, the statute, for the

mosl part, gives the Board discretion to

use its judgment in assessing the

adequacy of implementation plans, The

statutory language expresses one major

substanti\'c measure of an

implementation plan's effectiveness.

which is perhaps self-evident. Since the

Secretary must ordinarily "carry out"

and "complele" implementiition in one

year, it necessarily follows thai lhe plan

must schedule, Dnd otherwise assure,
Federal Register I Vol. 55, No, 209 / Monday, Oelober 29, 1990 / Nolices

- 43399

that i.lclior: is taken to accompliSh the

rcCommenJation. The statute also

imroses two procedural requirements.

First. lhe Secretary must "lriHH.mit tho

impl8nlCntatioll phUl to the Board wilhjo

90 days after the date" of the Secretary's

final decision on the recommr.ndiltion. If

additional time is necessary 10 write the

plan. the Sccrehny may take an

additionsI 45 days, provided h,~ submits

the reasons for the delay to the

appropriate congressional commmittees.

<;ccond, if the Secretary cannot carry

out and complete the implementation

plan within onc year. he must report the

reasons for rhe delay to the appropriate

congressional committees.

The purpose of the implementation

plan is to provide 0 basis and a schedule

for assuring that accepted

recommendations are accomplished.

A. Substantive edleri'D

1, Does DOE understand the Board's

recommendation?

DOE's responses give the first

indication of whether or not the BOllrd's

recommendations have been

communicated and understood. H a

respose Is adequate, the implementaljOl'l

plan should track the response in this

rogard and clearly demonstrale an

understanding of the rccomendation. If

there is 8 clear restatement by DOE in

the implementation plan of the

recommendation's goals, or of t~e

underlying issues or problems identified

by the recomn'l(mdation, the Ooal"d can

then reasonably assume that its initial

recommendation was understood. DOE,

however, maintains latitude to

implement recommendations in a wide

vari~ty of way9 so long os the BOArd's

recommendations are achieved,

Ultlmately, the totality of all the term. of

the plan will exhibit the level of DOE'.

understanding and acceptance of the

recommendation.

2. What does DOE intend 10 do 10

accomplish the recommendation?

A clear acceptance of the Boaro's

recommendation in DOE's rcsponse is

the Initlullndicalor thot DOE i.

comlnilled to achicving Ole

reconunendcd action, On the other hand,

if an initial implementation plan

incorpor3tes Q response which does not

signal DOE's intent to fully meet the

recummendation, the Board has grounds

for serious concern. A spccific

description oC ODE's Intended cOurse of

action. in the implementation plan itself,

is the bcst indicator of whether DOE is

committp.d to the accomplishment of the

recommcndation. Such a description can

olso resolve Questions raised by

ambiguous or unclear DOE responses,

ond clarify how DOE hAS chosen to

interpret thc recommcndotion.

If DOE's response meets the terllls of

the rccommendation, and that response

is incorporated in the implementation

plan by reference, or restated. the DOlHd

has reason to believe thut DOE inhmds

to comply, That intent must be

confirmed, however, by a full review of

Ihe detail. of how DOE plae. to

accomplish the recommcndilHon,

3, What are DOE'6 ba.eline

assumptions?

The depth and type of ba.eline

assumptions can vary greiltly depending

on the recommendation, Most

implcmentation plans will be based on

engineering or technical assumptions,

Some Implementation plans, if not all,

will embrace administrative and .

Ip.gis}ative assumptions also, LA.

compliance provided sufficient funds are

appropriated, Important assumptions

.hould be presented in the plan.

4. Ha. DOE adequately outlined II.

approach?

DOE's approach must be outlined in

sufficient dotan to enable the Board to

independently assess the approach

without doing the underlying work. The

plan .hould addre.. the questioa. of

how the gool. relating 10 ••fety will be

achicved and maintained. The Board

should be abla to ••seS6 whether lhe

approach is reasonable and achievable

within the specified time period.

·5, Has DOE adequalely ju.lified a

course of action proposed in the

implementation plan?

The plan should contain 8 sound

evaluation of the problem first identifieu

in the recommendation, including a root

Ciluse analysis (or summary thereof), so

thot it is clear why DOE is taking the

proposed action. The causes of any

technical problems should be identified.

when appropriate, not just the

administrative controls (or lack thereon

that allowed the situation to occur.

Reasons should be given for agreeing

with the recommcndation, based on

DOE's own analysis.

6. Ha. the plan truly called for

completion or closure?

The plan should clearly prOVide a

method for demonstrating completion or

d08ure in a manner that can be easily

verified by the Board,

B, ProcedurallZaquiJ'emenls

1. Hus DOE .ubmilled the plan to tho

BOilrt.l in acCOrdAT!CC with statutory

dcadlines?

2. Has DOE established a realistic and

achieVAble schedule for completion?

Final deadlines, as well 8$

intermediary milestones or checks and

deliverables with measures of

nccomplishment, should be identified In

the implementation plan.

3, He. DOE odequatcly provided for

implementation course corrections or

process change In appropriate cases?

Complex, long range plans must be

flexible enough to accommodate change

if necessary. A process should be

dofined for configuration management

or change control so that the proposed

action can be modified if additional

inforfl'lotion dicta.tes. or changes in the

assumptions occur,

4, Ha. DOE provided for quality

assurance in appropriate cases?

The Board may require a plan to

.pecify how the qualify of the proposed

actiol~ will be assured. Quality issues

include qualifications of people

involved, internal checks on the

implementation a$ the task is completed,

final verification, independent oversight,

and chain of custody on records,

samples, other critical n.l:lta and

documentation.

5. Does the Plan provide for adel1unte

reporting in appropriate cases?

A reporting scheme and schedule

should be speCified to assure the BOOlrd

remains infonned of the status of tbe

progress and :.my new related ls~mcs

that may Appear.

John T. Conway,

Choirmnn.

Appendix-TransrniUal LeUer 10 the

SecretAry of Energy

o<:tober 19, 1990.

The Honorable James D. Wslkins, Sccrct3ry

of Energy. Wushlogton, OC 20585

Rcr; DNFSa Policy Statement No.1: Crileria

for Judging the Adequacy of DOE

~l!spon8e8 Gnd Implc:mentolion Pluns

Dear Mr, Secretory: Enclosed pleose rind

policy criteria which lhe Doard ummlrnously

adopted for judging the adequucy of DOE

rCIlponSC8 find implcmentHtion plans for

Uoard recommendations, We hnve previollsly

circulated draft (:riteriu with DOE staff

f(!!'ipnnsiblc for preparing responsp.s and

implemenlatioll plnlls. The use of Ihe critPorill,

logelher wilh tho close cooperollon of DOE

and Bonrd 81Rff, huve resulted In more

comp!r.lp, :)Ild sound responses and

imp'!'Il1('II!;lllon plHn!l.
43400 Federal Register I Vol. 55. No. 209 I Monday. OClob.r 29. 1990 I Nolices

Sincerely.

John T. COnwflY.

Chairman.

IFR Doc. 9()'-'~5507 Filed lQ-2H-9U; 6;<1$ am)

D1LUNG COOE 68'20-KD-M
APPENDIX D

DOE SAFETY ORDERS OF INTEREST

TO THE BOARD

DOE Order 1300.2A, "Dcpartment of Energy Technical Standards Program"

DOE Order 1360.2B, "Unclassified Computer Security Program"

DOE Order 1540.2, "Hazardous Material Packaging for Transport - Administrative

Procedures"

DOE Order 1540.3, "Base Technology for Radioactive Material Transportation Packaging

Systems"

DOE Order 4330.4B, "Maintenance Management Program"

DOE Order 4700.1, "Project Management System"

DOE Order 5000.3B, "Occurrence Reporting and Processing of Operations Information"

DOE Order 5400. I, "General Envirol.ll11ental Protection Program"

DOE Order 5400.2A, "Environmental Compliance Issue Coordination"

DOE Order 5400.3, "Hazardous and Radioactive Mixed Waste Program"

DOE Order 5400.4, "Comprehensive Environmental Response, Compensation, and

Liability Act Requircments"

DOE Order 5400.5, "Radiation Protection of the Public and the Environment"

DOE Order 5440.IE, "National EnvirolUnental Policy Act Compliance Program"

DOE Order 5480.lB, "Environmcnt, Safety and Health Program"

DOE Order 5480.3, "Safety Requiremcnts for the Packaging and Transportation of

Haz.ardous Materials, Hazardous Substances and Hazardous Wastes"

DOE Order 5480.4, "Environmental Protection, Safety and Health Protection Standards"

DOE Order 5480.5, "Safety of Nuclear Facilities"

DOE Order 5480.6, "Safety of DOE-Owned Nuclcar Reactors"

DOE Order 5480.7A, "Fire Protection"
DOE Order 5480.8A, "Contractor Occupational Medical Program"

DOE Order 5480.9, "Construction Safcty and Health Program"

DOE Order 5480.10, "Contractor Industrial Hygiene Program"

DOE Order 5480.11, "Radiation Protection for Occupational Workers"

DOE Order 5480.15, "Department of Energy Laboratory Accreditation Program for

Personnel Dosimetry"

DOE Order 5480.17, "Site Safety Representatives"

DOE Order 5480.18A, "Accreditation of Performance-Based Training for Category A

Reactors and Nuclear Facilities"

DOE Order 5480.19, "Conduct of Operations Requirements for DOE Facilities"

DOE Order 5480.20, "Personnel Selection, Qualification, Training, and Staffing

Requirements at DOE Reactor and Non-Rcactor Nuclear Facilities"

DOE Ordcr 5480.21, "Unreviewed Safety Questions"

DOE Order 5480.22, "Teclmical Safety Requirements"

DOE Order 5480.23, "Nuclear Safety Analysis Reports"

DOE Order 5480.24, "Nuclear Criticality Safety"

DOE Order 5480.25, "Safety of Accelerator Facilities"

DOE Order 5480.26, "Performance Indicators"

DOE Order 5480.28, "Natural Phenomena Hazards"

DOE Order 5480.29, "Employee Concerns"

DOE Order 5480.30, "Reactor Design Criteria"

DOE Order 5481.1B, "Safety Analysis and Review"

DOE Order 5482.1 B, "Environment, Safety, and Health Appraisal Program"

DOE Order 5483.1A, "Occupational Safety and Health Program for DOE Contractor

Employees at Govenunent-Owned Contractor-Operated Facilities"

2
DOE Order 5484.1, "Environmental Protection, Safety, and Health Protection Information

Reporting Requirements"

DOE Order 5500.1B, "Emergency Management System"

DOE Order 5500.2B, "Emergency Categories, Classes, and Notification and Reporting

Requirements"

DOE Order 5500.3A, "Plmming and Preparedness for Operational Emergencies"

DOE Order 5500.4A, "Public Affairs Policy and Planning Requirements for Emergencies"

DOE Order 5500.78, "Emergency Operating Records Protection Program"

DOE Order 5500.10, "Emergcncy Readiness Assurance Program"

DOE Order 5632.11, "Physical Protection of Unclassified, Irradiated Reactor Fuel III

Transit"

DOE Order 5700.6C, "Quality Assurance"

DOE Order 5820.2A, "Radioactive Waste Management"

DOE Order 6430.1A, "General Design Criteria"

DOE Order 5480.31, "SfU and Restart of Nuclear Facilities"

3