[Federal Register Volume 62, Number 214 (Wednesday, November 5, 1997)]
[Notices]
[Pages 59910-59912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29244]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[Docket Nos. 70-7001; 70-7002]


Memorandum of Understanding Between the Nuclear Regulatory 
Commission and the Department of Energy on Cooperation Regarding the 
Gaseous Diffusion Plants

AGENCIES: Nuclear Regulatory Commission and Department of Energy.

ACTION: Memorandum of Understanding between the Nuclear Regulatory 
Commission and the Department of Energy.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) and the Department of 
Energy (DOE) have entered into a Memorandum of Understanding (MOU) on 
cooperation regarding the gaseous diffusion plants. The MOU is intended 
to describe the various responsibilities with respect to continued 
cooperation between NRC and DOE, and to set forth a framework for 
coordination of issues now that NRC has assumed regulatory oversight. 
The text of the MOU is set forth below.

FOR FURTHER INFORMATION CONTACT: Mr. Robert C. Pierson, telephone 301-
415-7192, Office of Nuclear Material Safety and Safeguards, MS T-8A-33, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555.

    Dated at Rockville, Maryland, this 30th day of October 1997.

    For the Nuclear Regulatory Commission.
Elizabeth Q. Ten Eyck,
Director, Division of Fuel Cycle Safety, and Safeguards, NMSS.

Memorandum of Understanding Between the Department of Energy and the 
Nuclear Regulatory Commission; Cooperation Regarding the Gaseous 
Diffusion Plants

I. Background

    The Atomic Energy Act of 1954 (the Act), as amended by the 
Energy Policy Act of 1992 (42 U.S.C. 2297 et seq.), created the 
United States Enrichment Corporation (USEC), a government 
corporation, for the purpose of managing and operating the uranium 
enrichment enterprise owned and previously operated by the 
Department of Energy (DOE). USEC leased those portions of the plants 
related to gaseous diffusion plant (GDP) operations from DOE. 
Certain portions of the plants, such as waste storage areas and 
burial grounds, are not leased by USEC and remain under DOE's 
jurisdiction. The Act also required that the Nuclear Regulatory 
Commission (NRC) establish standards for regulation of the GDPs 
located in Paducah, Kentucky, and Piketon, Ohio, in order to protect 
the worker and public health and safety and to provide for the 
common defense and security. NRC published its final standards, 10 
CFR part 76, ``Certification of Gaseous Diffusion Plants,'' on 
September 23, 1994 (59 FR 48944). The Act also directed NRC to 
establish and implement an annual <SUP>1</SUP> certification process 
by which the gaseous diffusion plants would be certified by NRC for 
compliance with these standards. For areas where plant operations 
are not yet in compliance, the Act provided that DOE will prepare 
compliance plans. Based upon a review of the certification 
applications and the DOE-prepared compliance plans submitted by 
USEC, on September 16, 1996, a Notice of Certification Decision for 
the USEC to operate the GDPs and a Finding of No Significant Impact 
(the notice) was issued by NRC, 61 FR 49360 (September 19, 1996). 
After disposition of public comments received in response to NRC's 
Notice of Certification Decision, NRC issued a Certificate of 
Compliance and a compliance plan approval for each plant on November 
26, 1996. The Certificates of Compliance became effective and NRC 
assumed regulatory oversight of the GDPs on March 3, 1997.
---------------------------------------------------------------------------

    \1\ The USEC Privatization Act, Pub. L. 104-134, amends 
1701(c)(2) of the Atomic Energy Act, by replacing the requirement 
for an annual application for a certificate of compliance with a 
requirement for an application to be filed ``periodically, as 
determined by the Commission, but not less than every five years.''
---------------------------------------------------------------------------

    This Memorandum of Understanding (MOU) is designed to supplement 
the ``Agreement Defining Security Responsibilities at the Paducah 
and Portsmouth Gaseous Diffusion Plants Between the Department of 
Energy's Office of Safeguards and Security and the Nuclear 
Regulatory Commission's Division of Security,'' dated March 10, 
1995, and replace the ``Agreement Establishing Guidance for NRC 
Inspection Activities at the Paducah and Portsmouth Gaseous 
Diffusion Plants between Department of Energy Regulatory Oversight 
Manager and Nuclear Regulatory Commission,'' dated August 11, 1994.

II. Authority and Scope

    Pursuant to the Atomic Energy Act of 1954, as amended, including 
in particular the provisions of the Energy Policy Act of 1992 on 
regulation and certification as generally described above, NRC and 
DOE are issuing this MOU to describe the various responsibilities 
with respect to continued cooperation between NRC and DOE, and to 
set forth a framework for coordination of issues now that NRC has 
assumed regulatory oversight.
    A. NRC assumed regulatory oversight for nuclear safety, 
safeguards, and security at the leased portions of the GDPs on March 
3, 1997, with the exception of the Highly Enriched Uranium (HEU) 
Refeed activity in Buildings X-326 and X-705 at the Portsmouth 
Gaseous Diffusion Plant.
    B. The Regulatory Oversight Agreement (ROA), Exhibit D to the 
Lease Agreement between DOE and USEC, sets forth the requirements 
and safety basis for the operation of DOE activities in the leased 
areas of the GDPs. The activities governed by the ROA consist of HEU 
Refeed activity in Buildings X-326 and X-705 at the Portsmouth 
Gaseous Diffusion Plant. Nothing

[[Page 59911]]

in this MOU is intended to restrict or expand the authority of DOE 
or to affect or otherwise alter the terms of the ROA until by its 
terms it ceases to apply to facilities or activities for which NRC 
assumes regulatory oversight.
    C. NRC certification of the GDPs is in part conditioned upon 
USEC adherence to a Compliance Plan prepared and approved by DOE for 
each GDP in accordance with the Atomic Energy Act of 1954, as 
amended, and 10 CFR Part 76. Modification(s) to the Compliance Plan 
requires DOE approval prior to submittal to NRC for final approval.
    D. NRC re-certification of the GDPs is in part conditioned upon 
USEC compliance with all terms and conditions of the NRC certificate 
of compliance.
    E. Nothing in this MOU is intended to restrict or otherwise 
limit the authority of NRC to exercise its full regulatory 
authority, including both inspection and enforcement authority.

III. Interfaces Between DOE and NRC

A. Exchange of Information and Technical Staff Support

    1. DOE and NRC agree to make available to each other information 
and technical support concerning matters of common 
interest.<SUP>2</SUP> DOE and NRC agree to meet, as necessary, at 
mutually agreeable times and locations to exchange information on 
matters of common interest.
---------------------------------------------------------------------------

    \2\ Matters of common interest concern modifications to GDP site 
areas, railways, roadways, structures, systems, components, hazards, 
activities, tenant mix, population, etc., which can impact safety, 
safeguards or security risks (likelihood or consequence) under DOE 
or NRC jurisdiction during normal, off-normal or emergency 
conditions. The tenant mix includes multiple organizations other 
than DOE and USEC with GDP site space leased from DOE. These 
organizations are not staffed with GDP workers, i.e. National Guard, 
Defense Logistic Agency, etc.
---------------------------------------------------------------------------

    2. DOE agrees to notify NRC of the following:
    a. Substantial proposed changes to the GDP site involving 
matters of common interest.
    b. Substantial proposed changes to the Lease Agreement between 
the Department of Energy and the United States Enrichment 
Corporation, dated July 1, 1993.
    c. Substantial proposed changes to the DOE Regulatory Oversight 
Agreement between DOE and USEC.
    d. Substantial proposed changes to ``USEC AND DOE Resolution of 
Shared Site Issues at the Gaseous Diffusion Plants,'' dated January 
24, 1996.
    e. Substantial proposed changes to the HEU Refeed Program.
    3. NRC agrees to notify DOE of the following:
    a. Substantial proposed changes in USEC's operations potentially 
impacting safety, safeguards and/or security on site.
    b. Substantial changes to the conditions or terms of the NRC 
certificate of compliance issued to USEC.
    c. Substantial changes to USEC's compliance with the conditions 
or terms of the certificate of compliance issued to USEC.
    4. NRC will consult with DOE on health, safety and environmental 
issues at the GDPs when preparing the required annual report to 
Congress on the GDPs.
    5. NRC and DOE will share all audit, assessment, and inspection 
reports on shared systems or areas.
    6. DOE and NRC will coordinate with each other for proposed 
enforcement actions involving those shared systems or areas in 
Buildings X-326 and X-705 at the Portsmouth GDP where there is HEU 
activity. USEC is responsible for all system components required for 
USEC LEU/GDP operability. These components are subject to NRC 
inspection and enforcement, although they may be physically located 
in DOE controlled space.
    7. Each agency recognizes that it is responsible for the 
identification, protection, control and accounting of information 
used or otherwise furnished in connection with this MOU in 
accordance with its established procedures. This information 
consists of classified, proprietary, Safeguards Information (SGI) 
and Unclassified Controlled Nuclear Information (UCNI).

B. Emergency Response

    1. In accordance with the Federal Radiological Emergency 
Response Plan (FRERP), the NRC is the Lead Federal Agency (LFA) for 
an emergency involving DOE-owned GDPs operating under NRC regulatory 
oversight. If the origin of the emergency is determined to be in the 
DOE portion of the plant, then the LFA would be transferred to DOE. 
DOE and NRC will develop appropriate joint procedures which will 
ensure compatibility in response to emergencies in leased areas 
under NRC regulatory oversight.
    2. The emergency planning requirements for GDPs, including 
offsite notifications and emergency classification levels and their 
corresponding emergency action levels, will be in accordance with 
the site emergency plans and procedures which will be coordinated 
among shared site regulators and tenants before and during 
implementation.

C. Referrals

    1. DOE will not conduct inspections of nuclear safety, 
safeguards, and security in leased areas, except where there is 
shared safety, safeguards, or security features in USEC leased 
space, or as related to the HEU Refeed Program and DOE nuclear 
material and activities in USEC leased space. However, DOE personnel 
may, during the course of performing DOE activities, identify 
nuclear safety, safeguards or security concerns within the area of 
NRC responsibility. In such instances these and any other nuclear 
safety, safeguards or security concerns within NRC's purview 
identified by DOE will be referred to the NRC Resident Inspector for 
appropriate action. If DOE identifies situations with immediate 
safety, safeguards, or security significance, it will immediately 
communicate this information to USEC and the NRC Resident Inspector.
    2. Similarly, although NRC will not conduct nuclear safety, 
safeguards, and security inspections in non-leased areas, NRC 
personnel may, during the course of performing NRC activities, 
identify nuclear safety, safeguards or security concerns within the 
area of DOE responsibility. NRC will refer these concerns to the DOE 
Site Manager for appropriate disposition. If the NRC identifies 
situations with immediate safety, safeguards, or security 
significance, it will immediately communicate this information to 
USEC and the DOE Site Manager.
    3. Each agency will be responsible for processing, under its 
established program(s), allegations--declarations, statements or 
assertions of impropriety or inadequacy whose validity has not been 
established--and employee complaints or concerns of regulatory 
significance. Each agency will keep the other agency informed, as 
appropriate, of the existence, status and resolution of such 
allegations, complaints, or concerns. Each agency will assure that 
each allegation, complaint, or concern is promptly referred to the 
agency or entity that has jurisdiction over the allegation, 
complaint, or concern.

D. Coordinations

    1. DOE will coordinate with USEC to inform NRC of reportable 
events, under DOE's occurrence reporting system, for which DOE is 
responsible.
    2. DOE and NRC shall consult with each other before disclosure 
of information related to this MOU to preclude dissemination of 
information which may be exempt from disclosure under the Freedom of 
Information Act. It is NRC's practice to place all docket related 
DOE correspondence that is not classified or proprietary in the 
Public Document Room, unless DOE specifically requests, with 
appropriate justification, that the information be withheld.
    3. On occasion, DOE may need to move its nuclear materials not 
in process through USEC areas to another location. NRC will not 
require DOE to fill out Forms 741 and/or 742 if the nuclear 
materials not in process only pass through USEC areas, i.e., not 
normally involving more than one shift, and remaining under DOE's 
continuous custody.

IV. Points of Contact

    A. The principal senior management contacts for this MOU will be 
the DOE Assistant Manager for Enrichment Facilities, Oak Ridge 
Operations Office, and the Director, Division of Fuel Cycle Safety 
and Safeguards, Office of Nuclear Material Safety and Safeguards, 
NRC. These individuals may designate appropriate staff 
representatives for the purpose of administering this MOU.
    B. Identification of these contacts is not intended to restrict 
communication between DOE and NRC staff members on technical and 
other day-to-day activities.

V. Resolution of Disputes

    A. If disagreements or conflicts about matters within the scope 
of this MOU arise, DOE and NRC will work together to resolve these 
differences.
    B. Resolution of differences between DOE and NRC staff will be 
the initial responsibility of the DOE Site Manager, Portsmouth Site 
Office, or the DOE Site Manager, Paducah Site Office, and the Chief 
of the responsible Branch within the Office of Nuclear Material 
Safety and Safeguards, NRC.
    C. If the issue can not be resolved at the staff level, the NRC 
and DOE agree to refer the matter within 30 days to the Assistant

[[Page 59912]]

Manager for Enrichment Facilities, Oak Ridge Operations Office, DOE, 
and the Director, Division of Fuel Cycle Safety and Safeguards, 
Office of Nuclear Material Safety and Safeguards, NRC.

VI. Effective Date and Modification

    This MOU shall become effective upon signing by the DOE 
Assistant Manager for Enrichment Facilities, Oak Ridge Operations, 
and the Director, Division of Fuel Cycle Safety and Safeguards, 
Office of Nuclear Material Safety and Safeguards, NRC, and will be 
subject to periodic reviews and may be amended or modified upon 
written agreement by the parties. This MOU may be terminated by 
mutual agreement or by written notice of either party submitted six 
months in advance of termination.

VII. Separability

    If any provision(s) of this MOU, or the application of any 
provision(s) to any person or circumstances, is held invalid, the 
remainder of this MOU and the application of such provision(s) to 
other persons or circumstances shall not be affected.
    For the Nuclear Regulatory Commission.

    Dated: October 27, 1997.
Elizabeth Q. Ten Eyck,
Director Division of Fuel Cycle Safety and Safeguards, Office of 
Nuclear Material Safety and Safeguards, Nuclear Regulatory Commission.

    For the Department of Energy.

    Dated: October 28, 1997.
Joseph W. Parks,
Assistant Manager for Enrichment Facilities, Oak Ridge Operations 
Office, Department of Energy.
[FR Doc. 97-29244 Filed 11-4-97; 8:45 am]
BILLING CODE 7590-01-P