[Federal Register Volume 60, Number 4 (Friday, January 6, 1995)]
[Notices]
[Pages 2089-2091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-363]



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DEFENSE NUCLEAR FACILITIES SAFETY BOARD

[Recommendation 94-5]


Integration of DOE Safety Rules, Orders, and Other Requirements

AGENCY: Defense Nuclear Facilities Safety Board.

ACTION: Notice; recommendation.

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SUMMARY: The Defense Nuclear Facilities Safety Board has made a 
recommendation to the Secretary of Energy pursuant to 42 U.S.C. 2286a 
concerning Integration of DOE Safety Rules, Orders, and Other 
Requirements. The Board requests public comments on this 
recommendation.

DATES: Comments, data, views, or arguments concerning this 
recommendation are due on or before February 6, 1995.

ADDRESSES: Send comments, data, views, or arguments concerning this 
recommendation to: Defense Nuclear Facilities Safety Board, 625 Indiana 
Avenue, NW., Suite 700, Washington, DC 20004.

FOR FURTHER INFORMATION CONTACT:
Kenneth M. Pusateri or Carole C. Morgan, at the address above or 
telephone (202) 208-6400.

    Dated: January 2, 1995.
John T. Conway,
Chairman.

[Recommendation 94-5]

    The Board has been following with considerable interest the 
structure of DOE's nuclear health and safety requirements as the 
transition is being made from the use of Orders to rulemaking. The 
Board recognizes that the change has been prompted by provisions of the 
Price/Anderson Act Amendments of 1988, the need for uniform, 
enforceable requirements, and by a desire of the Department to provide 
greater opportunities for public input into the process for 
establishment of requirements. Thus the Board understands the reasons 
for development and promulgation of nuclear safety requirements through 
rulemaking. However, the Board has expressed reservations in the past 
and remains concerned today lest the process of conversion of Orders to 
rules is used as occasion to: [[Page 2090]] 
    (1) Unduly relax or eliminate important nuclear safety requirements 
in Orders.
    (2) Relegate good nuclear safety practices extant in existing 
Orders to optional status.
    (3) Forego or delay current efforts to bring safety practices into 
compliance with mutually agreed implementation plans that respond to 
recommendations of the Board.
    In accepting Recommendation 91-1, your predecessor advised that 
rulemaking would be a time-consuming process, and he committed to 
expedited issuance and implementation of updated requirements in DOE 
Orders while rules are developed. More recently, in your response of 
October 21, 1994 to the Board's May 6, 1994 inquiry to the Department, 
you also acknowledged the need for interim development, revision, and 
compliance with requirements in DOE Orders while rules are being 
promulgated.
    In fact, your response reflected more completely the process that 
has been developed in discussions with the Board and its staff. It 
stated that:
    (1) The Department is committed to a requirements-based safety 
management program.
    (2) Environment, safety and health requirements are identified in 
rules and Orders.
    (3) Orders are the prevailing means by which the Department 
identifies management objectives that are requirements for its 
personnel, and when incorporated into contracts, requirements for DOE 
contractors.
    (4) Nuclear safety Orders are being phased into rules. Rules are 
the documents by which the DOE establishes binding requirements of 
general applicability and are adopted pursuant to the Administrative 
Procedures Act.
    (5) Contractors are expected to comply with a rule or Order when it 
becomes effective.\1\

    \1\Note: Rules actually require an implementation plan and then 
allow a period for achieving compliance. A similar phase-in period 
is permissible for requirements in Orders incorporated into 
contracts.
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    (6) Standards/Requirements Identification Documents (S/RIDs) are 
developed as compilations of site and facility-specific requirements 
contained in applicable legislation, rules, Orders, technical standards 
and other directives necessary to operate facilities or conduct DOE 
activities with adequate protection of workers and the general public.
    This summary clearly shows that DOE intends that the definition of 
what constitutes adequacy in the way of protection of workers and the 
public extends beyond the requirements of rules. In that, the Board 
definitely concurs. It is the compilation of requirements as envisaged 
for RIDs that represents the more comprehensive base upon which sites 
and facilities are to be managed from the environment, health and 
safety viewpoint. This has also been the thrust of many of the Board 
recommendations dealing with Order compliance.
    However, the action toward development of S/RIDs has been slow. 
Requirements in Orders have been and are still the prevailing DOE means 
for defining safety requirements for contractors. Requirements in 
Orders are made enforceable by incorporating Orders into contracts. 
Therefore, the Board has reviewed a number of existing M & O contracts 
relative to provisions for Order compliance. The Board has also 
examined the health and safety management specifications included in 
several recently proposed contract actions (for example, at Rocky Flats 
and Hanford/Solid Waste Management). Performance per conditions 
specified either in existing contracts or those more recently examined 
will not in our view assure delivery of the safety management programs 
we believe that the Board and the Department expect.
    Though the Board has been reassured by your letter of October 21 
and by other means that requirements in DOE Orders are to remain 
operative until replaced by rules, there appears to be contrary 
guidance being issued to the field. For example, a May 27, 1994 
memorandum from the Assistant Secretary for Defense Programs provides 
guidance that in effect encourages a premature shift in resources from 
Order compliance to rule compliance. For rules that will have 
progressed far enough in the promulgation process that only a few 
months are left for a show of compliance, such action may be 
appropriate as regards establishing priorities in assigning resources. 
However, such action should not be construed as countenancing 
relaxation of necessary requirements of the existing Order. Moreover, 
for proposed rules not nearly so far along in the rule-making process, 
impending developments should not be taken as cause for a slowdown on 
compliance efforts or the upgrading of applicable requirements now in 
Orders and contracts.
    Along similar lines, the Board has noted a November 30, 1994 
advisory from the Albuquerque field office to DOE headquarters (M.S. 
Dienes to J. Fitzgerald) that a hold has been placed on the radiation 
protection functional appraisal process until DOE review and approval 
of the implementation plans for the rule have been completed. There is 
no rational justification for such deferral. Such action suggests that 
field personnel may have been led to believe that there will be marked 
differences between those radiation protection programs under the rule 
and the requirements under existing Orders incorporated in contracts.
    The provisions of the contracts and the above-mentioned advisories 
by DOE line management indicate that the integrated use of nuclear 
safety-related Rules, Orders, standards and guides in defining and 
executing DOE's safety management program may not be sufficiently well 
understood by either the M & O contractors or DOE managers. This issue 
was raised in the Board's letter of May 6, 1994 to the Department.
    Given the situation as described above, the Board believes that 
further DOE actions are needed to ensure there is no relaxation of 
commitments made to achieve compliance with requirements in Orders 
while proposed rules are undergoing the development process. These 
actions should also provide for smooth transition of Orders to rules 
once promulgated. Toward that end, the Board recommends that DOE:
    (1) Widely disseminate the information provided to the Board in 
response to our May 6, 1994 letter on DOE's Safety Management Program, 
and take steps to ensure that key technical and contracts personnel are 
well schooled in this topic.
    (2) Promptly issue appropriate directives and procedures to DOE 
Headquarters, Field Offices and O&M contractors which:
    (a) Embrace the basic principle that work already commenced or 
planned to develop and implement requirements in existing or revised 
Orders or S/RIDS should continue while rulemaking is underway;
    (b) Explain in detail the relationship between safety requirements 
contained in Orders in O&M contracts and those contained in new rules, 
and the process by which a rule may ``supersede'' parts, or the 
entirety, of a safety Order;
    (c) Explain that compliance with a requirement whether in a rule, 
Order or other directive is not accomplished by submittal of an 
adequate implementation plan but requires completion of action proposed 
by that plan;
    (d) Provide guidance to contractors and DOE program offices on how 
to coordinate implementation plans for multiple requirements such as 
those in [[Page 2091]] Orders, rules, S/RIDS and 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 requirements that 
are necessary and appropriate are not relaxed nor eliminated, and 
schedule commitments for achieving compliance are not delayed.
    (3) Ensure that compliance with the minimal (base-line) set of 
safety requirements contained in Rules is not construed as full 
compliance with all necessary safety requirements and does not displace 
effort to develop and implement through RIDS the best nuclear safety 
requirements and practices embodied in rules, Orders, standards, and 
other safety directives.
    (4) Clearly establish such line, oversight, and legal 
responsibilities for review and approval of contractual provisions 
specifying environment, health and safety requirements for DOE 
contractors to ensure that the requirements-based safety management 
program expected by the DOE will be uniformly developed and 
consistently imposed across the complex.

Defense Nuclear Facilities Safety Board

December 29, 1994.
The Honorable Hazel R. O'Leary,
Secretary of Energy, Washington, DC 20585.

    Dear Secretary O'Leary: On December 29, 1994, the Defense 
Nuclear Facilities Safety Board, in accordance with 42 U.S.C. 
2286a(5), unanimously approved Recommendation 94-5 which is enclosed 
for your consideration. Recommendation 94-5 deals with Integration 
of DOE Safety Rules, Orders, and Other Requirements.
    42 U.S.C. 2286d(a) requires the Board, after receipt by you, to 
promptly make this recommendation available to the public in the 
Department of Energy's regional public reading rooms. The Board 
believes the recommendation contains no information which is 
classified or otherwise restricted. To the extent this 
recommendation does not include information restricted by DOE under 
the Atomic Energy Act of 1954, 42 U.S.C. 2161-68, as amended, please 
arrange to have this recommendation promptly placed on file in your 
regional public reading rooms.
    The Board will publish this recommendation in the Federal 
Register.
      Sincerely,
John T. Conway,
Chairman.
[FR Doc. 95-363 Filed 1-5-95; 8:45 am]
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