ML20199K431
| ML20199K431 | |
| Person / Time | |
|---|---|
| Issue date: | 01/15/1999 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Conway J DEFENSE NUCLEAR FACILITIES SAFETY BOARD |
| Shared Package | |
| ML20199K381 | List: |
| References | |
| NUDOCS 9901260416 | |
| Download: ML20199K431 (6) | |
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NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20666-0001 January 15, 1999 CHAIRMAN The Honorable Johti T. Conway, Chairman U.S. Defense Nuclear Facilities Safety Board 625 Indiana Avenue, NW, Suite 700 Washington, D.C. 20004
Dear Mr. Conway:
The U.S. Nuclear Regulatory Commission (NRC) is required, by Section 3202(b) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85,111 Stat.1629), to submit comments both to Congress and to the Defense Nuclear Facilities Safety Board (DNFSB) on the report of the DNFSB issued in November 1998. The NRC staff has reviewed the " Report to the Congress on the Role of the Defense Nuclear Facilities Safety Board Regarding the Regulation of DOE's Defense Nuclear Facilities," and although it has not prepared a detailed point-by-point commentary, the enclosure to this letter provides some discussion on points of disagreement with the report.
In our view, your report does not diminish the basic case for extemal regulation of Department of Energy's ( DOE) defense nuclear facilities. Your main assertions are that the costs of extemal regulation are too high and that national security would be threatened. We disagree.
We discuss these points briefly below and in more detail in the enclosure.
Regarding costs, we agree that regulatory requirements for adequate safety may be costly; however, as the Board acknowledges, implementation of its own recommendations is costly, although those costs are not quantified in your report. As the DOE Advisory Committee on External Regulation said three years ago," Ordinarily, the expense of safety precautions is present anc concrete, while the much greater expense which is being prevented is merely possible and abstract. However, the costs of the DOE cleanup operations are a striking exception to this rule and persuasively make the case for extemal regulation of safety." Our past experience has indicated that the greatest cost would be to bring DOE facilities into compliance with current DOE regulations, and the additional cost of extemal regulation would be small by comparison.
Regarding national security, during the Pilot Program on Extemal Regulation, NRC has focused on non-defense program facilities, maintaining a bright line to clearly designate that defense nuclear facilities are not included in the Pilot Program. I have emphasized this, both in my letter to you dated July 12,1998, and in my September 23,1998, letter to Secretary Richardson, which stated that "The Nuclear Regulatory Commission (NRC) has focused on non-defense program facilities and does not currently have any plans to provide external regulation to the defense program facilities." However, we accept the Working Group's position that all DOE nuclear facilities, including Defense Programs facilities, would ultimately be subject to full regulation by the NRC, and we observe that there is nothing in your draft report that either l
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4 2-discusses or raises any reasonable doubt about the mechanisms that both the Advisory Committee and the DOE Working Group on External Regulation proposed for assuring that both safety and national security are appropriately addressed in extemal regulation of defense nuclear facilities.
The NRC has never argued that only it could be the extemal regulator of DOE nuclear facilities.
Although we think we could regulate those facilities well, we know that a reasonable case can be made for some other regulatory structure -- for instance, a Defense Board with substantially increased regulatory authority. Both the Advisory Committee and the Working Group recognized that external regulation can bring greater assurance of safety, more public confidence, more stability in safety expectations, more accountability both in the Department and in safety oversight, and, in the long run, lower costs.
The Board's report identifies three basic considerations that the Board believes are pivotal. The Commission notes that worker and public health and safety and environmental protection are not explicitly included among the considerations listed by the Board. The NRC believes that there is nothing in DOE's defense mission to suggest that, as a general matter, defense facilities should not adhere to the same health and safety standards that civilian facilities must meet. Therefore, we believe that the individuals who work at, and those who reside near, DOE nuclear facilities deserve the same protection of their health and safety as afforded to workers and residents near NRC-regulated facilities, i
Rather than prejudge the resolution of the questions and issues that have been raised by Congress, the Commission believes that consideration of these matters should be deferred until after completion of the DOE-NRC Pilot Program on extemal regulation at the end of Fiscal Year 1999. We look forward to engaging the Board along with other stakeholders in evaluating the outcome of the pilots and in preparing any recommendations to the Administration and Congress.
Sincerely, b
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Enclosure:
As stated i
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NRC COMMENTS ON DEFENSE NUCLEAR FACILITIES SAFETY BOARD NOVEMBER 1998 REPORT TO CONGRESS ON THE ROLE OF THE DEFENSE NUCLEAR FACILITIES SAFETY BOARD REGARDING REGULATION OF THE DEPARTMENT OF ENERGY'S DEFENSE NUCLEAR FACILITIES GENERAL The Defense Nuclear Facilities Safety Board (DNFSB) states many times throughout the report that an external regulatory structure with opportunities for public participation would be burdensome and would negatively affect national security by introducing delay or perhaps frustrating entirely the defense purposes of the President and Congress. The U.S. Nuclear Regulatory Commission (NRC) does not agree with these unsupported assertions. The NRC currently has no authority to regulate the Department of Energy (DOE) in this matter without explicit legislative action from Congress. However, if Congress were to direct the NRC to assume the role of external regulator of the DOE facilities, the NRC would provide a regulatory process that balances appropriate public participation and accountability with the ability to provide efficient and timely regulatory decisions to protect the public health and safety, the environment, and the common defense and security. Congress could limit and streamline any licensing or certification process that might be used for regulating the defense nuclear facilities through the legislation that would authorize the NRC to regulate defense nuclear facilities, thus mitigating any adverse effect on national security. The NRC currently regulates commercial nuclear facilities that serve defense missions and many U.S. Department of Defense (DOD) facilities, vital for national security, without the civil process causing an adverse effect.
The DNFSB report states that " Fining DOE would merely transfer appropriations away from safety activities the public is concerned about, thereby making operations potentially more risky and cleanup activities further delayed." The NRC has a history of successful enforcement actions against other large Federal agencies, including the imposition of civil penalties. The NRC believes that the deterrent effect of the civil penalty on the Federal licensee is very much the same as the effect of a similar penalty on a private licensee and leads to greater attention being paid to safety. The pilot program will address the effect of enforcement measures against the DOE or its contractors in more detail in its reports.
Resoonse to Conaressional issue 4 The report identifies eight "... major advantages to continuing Board oversight" and four "...
major advantages attributed to regulation." The advantages of continuing Board oversight, as given in the report, include: " Independent oversight may be conducted without unduly interfering with critical defense and security functions at defense nuclear facilities."
The NRC currently has no plans to externally regulate defense nuclear facilities, but we do not agree that if the NRC were to assume the role of external regulator,it would interfere with critical defense and security functions. As noted above, the NRC currently regulates commercial nuclear and many DOD facilities without unduly interfering with their national security mission. For example, the NRC has more than two decades of experience in regulating commercial facilities that fabricate nuclear fuel for the U.S. Navy. Throughout this period, there has not been a single regulatory action that has interfered with a critical defense
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and security function. Furthermore, any potential for such interference at the DOE facilities could be dealt with as it is in the environmental statutes under which the DOE defense facilities are already externally regulated - namely, by a!!owing the President to resolve possible conflicts between safety and national security.
The report also asserts that another advantage of continuing Board oversight is: " Shifting to a regulatory structure at this point would disrupt progress being made under Board recommendations." We are not aware of any Board recommendation that would be affected by a transition to NRC regulation. For example, the implementation of the Integrated Safety Management System has been reviewed during the pilot projects and could continue undiminished under NRC regulation.
The report attempts to compare the relative costs of NRC regulation of commercial nuclear reactors with the Board's oversight of defense nuclear facilities. In our view, there is no accurate way of comparing the costs associated with these very different activities. It is our understanding that the Board does not attempt to provide the depth of oversight at each of the facilities under its jurisdiction that the NRC provides to the commercial nuclear power industry.
Furthermore, not every DOE facility would require NRC regulatory effort similar to that employed at a commercial reactor.
The report also indicates that the disadvantages of external regulation melude "... the time-consuming and cumbersome legal framework required for such processes, the enormous costs of bringing facilities into compliance with the rules, and the inherent inflexibility of regulatory requirements." Furthermore, the report states that "... adding another layer of regulation to existing ones is duplicative, costly, and may actually result in less safety rather than more." We believe that the NRC regulatory framework is suitable for arriving at timely and technically well-founded regulatory decisions, and that the costs that would be required would be only thosa needed to protect public health and safety. Furthermore, we believe that the NRC's risk-informed and performance-based approach to regulation would provide the necessary flexibility to app!y to the DOE facilities. We can identify no support for the contention that NRC regulation would result in "less safety." We also question the Board's position that it is too costly to bring DOE into compliance with its own rules.
Response to Conaressionallssue 6 The report states that "... neither the Board nor the NRC can verify, at any given time, that a specified defense nuclear facility or commercial nuclear facility is in full compliance with 'all' applicable requirements." We generally concur with this statement. Indeed, no regulatory or law enforcement body can be expected to assure universal compliance with its rules. However, it should be noted that the NRC has a vigorous regulatory program for identifying safety and security problems and ensuring that, based on the risk involved, corrective actions are taken in a timely manner to protect worker and public health and safety and the common defense and security.
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3 Response to CongressionalIssue 13 The report states that the Board would retain oversight of the Hanford Tank Waste Remediation System (TWRS), even if aspects of the TWRS were privatized and owned by the private sector.
Although the regulatory status of the TWRS remains somewhat uncertain due to recent contractual actions by the DOE, continuing Board oversight of the TWRS would appear unnecessary if NRC regulated the TWRS.
Response to CongressionalIssue 15 The report states that a disadvantage to NRC oversight of defense nuclear facilities is the
... termination of the traditional separation of regulation of commercial nuclear facilities from oversight of defense nuclear facilities." Although the NRC does not currently have any plans to externally regulate defense nuclear facilities, it does not believe that it is essential to maintain and defend the status quo in all matters regarding the oversight of the DOE. The Nation's policy environment has changed since the decisions separating defense and civilian nuclear facilities were made. It is clear that some activities involving defense-related facilities, such as the Hanford Tank Waste Remediation System, can benefit from the NRC's extemal regulatory approach.
The report also states that "... combining commercial nuclear regulation with the regulation of the defense complex under a single set of Commissioners would create several administrative, management, and efficiency problems." in fact, NRC currently regulates many commercial defense and DOD activities without these issues "... getting lost in the even broader scope of activities NRC currently conducts relative to commercial facilities." Although the issues associated with NRC regulation of commercial and DOD facilities may be less complex than those involved with the DOE defense nuclear facilities, there is no reason to believe that NRC could not effectively deal with these issues, as well.
The potential organizational conflict-of-interest issue arises only for a DOE laboratory that performs research for NRC on topics which would also pertain to the regulation of that DOE facility or another DOE facility. NRC is considering a number of possible solutions to address this potential problem.
Response to Conaressionallasue 16 The report states that "The Board does not believe that it is necessary for existing gaseous diffusion plants to be designated as defense nuclear facilities nor that the Board be given jurisdiction over them." The NRC agrees.
However, the NRC does not agree with some of the report's implications related to the cost of placing the gaseous diffusion plants (GDPs) under NRC jurisdiction. We do not believe that facility upgrades or training needed to meet the DOE requirements should be included in the costs of transferring the GDPs to NRC regulation.
The Board fails to include an estimate of the costs to the DOE of implementing the Board's recommendations, which would be a more relevant value for comparison with the 4\\
implementation costs at the gaseous diffusion plants, than the cumulative costs for the foard.
Moreover, the report does not describe the decision process used by the Board in form'!!ating its recommendations, specifically with respect to fisk significance and cost-benefit.
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Further, the benefits of NRC regulation were recently noted by the person who led the Paducah facility through the transition:"Perhaps, surprisingly, the most astonishing result of the transition was the associated improvement in plant business performance at the same time that Paducah was coming up to speed on NRC regulation." (Nuclear News, October 1998, page 34-38)
Conclusion. Pace 45 The final statement of the Board's report states " DOE, if it advocates external regulation of i
nuclear health and safety, would be diminishing its stature as a center of technical excellence in the nuclear field, much more than enhancing the credibility it seeks." Upon review of the report, the NRC finds no basis for such an assertion.
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