ML20236V529
| ML20236V529 | |
| Person / Time | |
|---|---|
| Issue date: | 07/27/1998 |
| From: | Rathbun D NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA) |
| To: | Calvert K, Pickering C HOUSE OF REP., HOUSE OF REP., SCIENCE, SPACE & TECHNOLOGY (FORMERLY |
| References | |
| CCS, NUDOCS 9808040014 | |
| Download: ML20236V529 (78) | |
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July 27,1998 l
1 The Honorable Charles W. " Chip" Pickering i
Acting-Chairman f
Basic Research Subcommittee United States House of Representatives l
Washington, DC 20515-6301 l
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Dear Mr. Chairman:
As you requested in your letter of June 2,1998 to Chairman Shirley Ann Jackson, enclosed are responses to post-hearing questions following the May 21,1998 subcommittee joint-hearing on Extemal Regulations of DOE Labs: Status of OSHA and NRC Pilot Programs.
In addition to the hard copies of the answers, a formatted disk has been forwarded to Steve Howell.
Sincerely, AN f'
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Dennis K. Rat bun, Director Office of Congressional Affairs
Enclosure:
As stated
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l July 27,1998 The Honorable Ken Calvert Chairman Energy & Environment Subcommittee United States House of Representatives Washington, DC 20515-6301
Dear Mr. Chairman:
As you requested in your letter of June 2,1998 to Chairman Shirley Ann Jackson, enclosed are responses to post-hearing questions following the May 21,1998 subcommittee joint-hearing on Extemal Regulations of DOE Labs: Status of OSHA and NRC Pilot Programs.
In addition to the hard copies of the answers, a formatted disk has been forwarded to Steve Howell.
Sincerely,
[
Dennis K. RathbuT1, D)d v
rector Office of Congressional Affairs
Enclosure:
As stated cc: The Honorable Charles " Chip" Pickering l
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l OUESTION 1.
Deputy Secretary Molar stated in her l
testimony that all pilots are selected jointly with the NRC and that DOE intends to l
embark on congplex plots at facilities such as nuclear reactors, environmental l
restoration or waste management.
Please list for the Committee which nuclear reactor sites you might select first and why?
AhlfiMER.
Based on future activities, reactor design and operation, and risk considerations, NRC would suggest one of the following two DOE non-power reactors (sites) as the first non-power reactor for a pilot project:
l 1.
Oak Ridge National Laboratory (ORNL) site:
The ORNL High Flux Isotope Reactor (HFIR).
This reactor will not be involved in defense program activities.
The reactor will provide the commercial sector with irradiation and neutron weattering capabilities for academic, industrial, and medical research.
NRC staff is knowledgeable about the HFIR design and operations as a result of the recent ORNL Radiochemical Engineering Development Center pilot project.
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ODESTION 1. '(continued) 3 2.
Brookhaven National Laboratory (BNL) site:
The Brookhaven Medical Research Reactor (BMRR).
This reactor is used for the boron neutron capture therapy program conducted in the private sector.
This is similar to the NRC-regulated activities at the Masse.chusetts Institute of Technology (MIT).
NRC staff is familiar with the specific BMRR design and operations as a result of the High Flux Beam Reactor (HFBR) Safety Assessment currently underway.
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otmSTION 2.
So far, the sites selected do not represent L
i the complex problems facing the majority of DOE labs.
How can DOE use these sites to l
l determine the costs of NRC/ OSHA regulation, the value-added, and identify the issues and dolutions associated with a transition to NRC/ OSHA oversight?
I Although the sites selected thus far are not representative of the total set of complex problems facing DOE laboratories, DOE and NRC are selecting additional pilot sites specifically designed to provide an increasingly wider and more challenging i
set of issues.
This enables the task force to establish baseline I
information at the less complex facilities, to build upon the l
framework established during initial pilots, and to focus specifically "pon the additional challenges posed by subsequent facilities.
I This process, when complete, will provide DOE a comprehensive set
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of data, upon which to base judgements regarding the costs of NRC regulation, the value-added W NRC ova? sight, and will provide a reliable set of information upon which to identify the issues and solutions associated with a transition to NRC oversight.
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b OUESTION 2 (continued) 2 NRC does not know what OSHA will do to gain the information necessary for a transition to OSHA oversight.
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DDESTION 3.
OSHA and NRC have developed agreements addressing overlap issues in nuclear i
facilities in commercial settings.
Have you done so for the DOE pilot program?
If not, can such agreements be used in the DOE l
setting?
35315E.
An agreement between OSHA and NRC has not been developed for the pilot program.
Due to resource constraints, OSHA indicates it can't fully participate in the Pilot Program.
Therefore the f
i scope and depth of OSHA participation is uncertain.
Development Center Pilot Project within the Pilot Program.
I Regarding the use of an agreement between OSHA and NRC in the DOE setting, OSHA indicates that they would be amenable to adopting l
l (with minor modifications) the shared jurisdiction regulatory approach embodied in the OSHA and NRC Memorandum of Understanding 080U) for joint regulation of the Gaseous Diffusion Plants (GDPs) recently transferred from DOE to NRC jurisdiction.
EK?TIOK 4.
MRC has studied external regulation of DOE facilities recently.
What key issues have you identified that would need to be resolved to ensure effective and efficient regulation of DOE nuclear safety by MRC?
In your response, would you identify any actions we in the Congress would need to take to facilitate a smooth transition to regulation of nuclear safety by NRC.
&E11138 To date during the conduct of the pilot program, the NRC staff r
l has identified the following key issues that would need to be resolved to ensure effective and efficient regulation of DOE nuclear safety.
Actions that would need to be taken by Congress to facilitate a smooth transition to regulation of nuclear safety by MRC are highlighted in the discussion of each key issue.
Nho is the regulator?
Potential external regulators of radiation and nuclear hazards at DOE facilities are: the NRC, individual Agreement States, and osha.
The NRC team recommends that NRC should be the regulator of DOE nuclear facilities because this would be consistent with the regulation of other Federal agencies and would help to ensure l
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.o OUESTION 4.
(continued) 2 consistent requirements across the DOE complex.
In the commercial sector, NRC regulation of radiation and nuclear hazards is already an established precedent.
In addition, NRC has retained responsibility for regulating radiation protection i
at Federal facilities in Agreement States, since without a waiver of sovereign immunity, State regulations generally do not apply 1
i to activities at Federal facilities.
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The transitional issue needing to be brought to the attention of l
Congress is jurisdiction over naturally-occurring and accelerator i
produced radioactive materials (NARM).
This is an area of jurisdiction that is not currently a responsibility of the NRC l
under the Atomic Energy Act.
In the event that NRC becomes the external regulator for LBNL, the NRC team is recommending that legislation be enacted to authorize NRC to regulate DOE accelerators and NARM.
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What is the regulatory mechanism?
NRC has considered using a variety of regulatory mechanisms, including some type of license (specific, broad scope, general, master material), concurrence (as in the Uranium Mill Tailings Radiation Control Act), orders, or certification of compliance along the lines of the U.S. Enrichment Corporation model. The
t OUESTION 4.
(continued) 3 first pilot that has been evaluated, LBNL, appears to be licensable.
However, any legislation broadly addressing MRC l
regulation of DOE facilities should provide enough flexibility to allow other regulatory mechanisms.
Who is the lisensee?
NRC could issue a' license to DOE only, the managataant and i
operating (M&O) contractor only, a joint license to DOE and the M&O contractor, or two separate licenses, one to DOE and one to the contractor (known as dual licenses).
For example, in the l
current draft of the Lawrence Berkeley National Laboratory (LBNL) l report, the NRC task force recommends that the M&O contractor, 1
the University of California (UC), should be the licensee because I
LBNL is a relatively small, low hazard, well managed facility, and the single contractor, UC, is unlikely to change.
- However, this should not be regarded as precedent setting for other sites, as a decision regarding who should be the licensee is dependent i
upon conditions existing at the site, for example, the nature of the work at the facility, the complexity of the activities, and the number of contractors present at the site.
The resolution of this issue might vary at different DOE facilities.
In drafting any legislation granting NRC regulatory
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OUESTION d.
(continued) 4 authority over DOE facilities, the language should be flexible enough to permit any of the' stated arrangements.
Now to Bandle Timeliness of Decomunissioning I
Under external regulation, certain DOE contractor facilities may not be found in compliance with 10 CFR 30.36, which describes the I
conditions under which decommissioning must begin at a licensed facility.
NRC's requirements specify that, if no principal activities have been conducted in a building or separate outdoor i
area for 24 months and if residual radioactivity is present that precludes the facility's release for unrestricted use, then the licensee must, within 60 days, inform NRC in writing that the principal activities have ceased.
In addition, the licensee is required to: (1) begin decommissioning the facility and complete it within 24 months, or (2) submit a decommissioning plan to NRC within 12 months and begin decommissioning in accordance with the plan once it is approved.
The NRC requirements contain l
provisions which permit licensees to apply for different time periods at each step.
One DOE facility (the Bevatron) which would not meet this requirement exists at the first pilot site, LBNL.
Requiring DOE l
facilities that fall under this requirement to comply with the
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OUESTION 4.
(continued) 5' timeliness in decommissioning rule, in DOE's view, poses unacceptable risks of fines and penalties, unless legislation is passed to exclude DOE and its contractors from these NRC requirainants.
However, NRC believes that a case specific approach could be pursued within the context of the flexibility already present in the NRC requirements.
The NRC staff is not aware of any aspects of this issue that require Congressional action at the present time.
Extending Indemnification for all DOE contractor activities currently all DOE nuclear activities with the risk of public liability are indemnified pursuant to the Price-Anderson Amendment Act (PAAA) with such coverage granted by incorporation of the Nuclear Hazards Indemnity clause.
DOE's indemnity is j
mandatory, unlike NRC which must indemnify only for commercial l
reactors and research reactors.
The University of California, as part of the LBNL pilot project, has indicated a belief that it should continue to be indemnified under PAAA.
However, DOE has convened a PAAA task force to draft a statutorily required report to Congress which will consider whether DOE should recommend continuation of indemnification for privatized activities and externally regulated activities where NRC indemnification does
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OUESTION 4.
(continued) 6 not apply.
l This issue may warrant Congressional attention at the time the i
PAAA is up for reauthorization in August 2002.
Logeny statorial For some of the DOE facilities that might come under NRC i
regulation in the near term, there may be some legacy materials and buildings that exist which may or may not already come under another Federal agency's jurisdiction, such as EPA.
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Legislative language and implementing rulemaking must be explicit j
as to which facilities or aspects of each site are to be regulated by NRC.
The term " legacy" must be precisely defined to the extent to which it might be part of NRC jurisdiction, and should be addressed in any enabling legislation.
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organizational confliot-of-Interest (NRC using DOE testing laboratories) i i
DOE laboratories are major contractors to the NRC for confirmatory research and as a source of experts who serve on l
advisory boards such as the Advisory Committee on Reactor i
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.. o OUESTION d.
(continued) 7 Safeguards. The possibility of an organizational conflict of interest arises when a DOE laboratory, regulated by the NRC, performs work for the NRC.
The NRC is currently adcJressing this issue through a survey to determine the availability of commercial contractors and universities as potential alternate sources.
The pilot program should provide a clearer understanding of the need for recommending either specific legislation, or other actions that should be taken by the commission.
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If the scope of DOE activities licensed by the NRC is significantly expanded, the staff has concluded that legislative changes would likely be needed to address conflict of interest issues.
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4 OUESTIOtt 5.
DOE, NRC, and OSHA have been talking about' external regulation for quite a while.
Could you explain to the subcommittees, what types of steering committees and other working groups the three agencies have to study this issue?
Could you also explain which of these committees have cross-agency membership and
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whether the membership of any of the groups includes all three agencies.
Xn your i
response, please indicate who coordinates external regulation issues within NRC.
AhlSG2L.
NRC has a staff-level task force for external regulation of DOE which is chaired by the Director of the Office of Nuclear Material Safety and Safeguards.
A task force deputy chairman 1
manages the day-to-day activities with regular briefings to management and the commission.
The task force has three full-time members, three part-time members and uses specialized i
inspectors to carry out the simulated regulation inspections at the DOE facilities.
In addition, an internal NRC Executive Committee meets with the task force a few times per year to review the work of the task force and make recommendations for future direction.
OUESTION 5.
(continued) 2 DOE has a similar staff-level task force and a senior executive steering committee in place.
The task force conducts day-to-day activities and the steering committee is responsible for providing policy and legal guidance on open issues.
A joint NRC/ DOE pilot program task fcrce contains all the members of the NRC and the DOE staff-level task forces.
This group is responsible for conducting the pilot projects, for producing the joint reports for each pilot project, and for conducting the analysis and completing the final pilot program report.
Both DOE and NRC are part of the National Academy of Public Administration I
forum which examines issues related to OSHA and its regulation of DOE.
While OSHA is not specifically involved in the report writing for each pilot project, DOE and NRC meet occasionally with OSHA and OSHA participants are invited to participate in the simulated-regulation inspections and are provided updates on the l
pilot project.
OSHA conducted a pilot project at Oak Ridge I
concurrent with the NRC pilot to lessen the burden on the site personnel.
l Policy issues related to external regulation are established by the Commission while non-policy issues within NRC are coordinated on a day to day basis by Dr. John Austin, Deputy Chairman of the
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Both the NRC and the DOE identify licensing OUESTION $.
to be one of'the many issues that needs to be resolved v ier to external regulation of DOE sites.
In your testimony, you mentioned that the NRC is e - 4 ming 4 different licensing arrangements, some of which would be problematic in the event that the contractors operating the sites changed hands, which I
would raise the question of whether the new contractor would have to apply to relicense the facility.
(A)
Could you 3xplain why the NRC believes that a licensing process is necessary?
ALE EB.
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The NRC does not believe a licensing process is necessary in every situation.
Before deciding to test the use of a broad-scope license to' regulate Lawrence Berkeley National Laboratory (LBNL) the team considered a variety of possible regulatory mechanisms, including: a specific license, a broad scope license, a general license, a Master Materials License, concurrence (as in the Uranium Mill Tailings Radiation Control Act), orders, and certification along the lines of the United I" tes Enrichment Corporation (USEC) model.
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l OUESTION 6fK).
(continued) 2 l
l In the case of LBNL, the NRC believes that licensing is the preferred regulatory mechanism because the current LBNL program is most similar to those of existing NRC and Agreement State broad-scope licensees such as universities regulated under 10 CFR Part 33 or compatible State requirements.
This approach does not require NRC to develop a new regulatory approach so licensing results in a more timely approach and requires fewer resources.
The broad-scops license would identify safety requirements as l
specific license conditions and the licensee (s) would be required to fulfill commitments made in the application and in the supporting information submitted as a res. ult of the NRC's review l
of the application.
NRC would exercise continuing regulatory oversight through inspections to ensure compliance with license l
conditions and other requirements.
Periodic modification or l
renewal of the license would be based on appropriate NRC review and licensee (s) would be required to fulfill certain requirements for releasing sites or transferring their oversight to another l
l regulatory entity.
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Nore generally, you have raised the question of whether some of the licensing arrangements could be problematic in the event that th's DOE contractor for the facility were changed.
You ask specifically whether the new contractor would have to apply to relicense the facility.
Even if a site contractor were the sole
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OUESTION 6(A).
(continued) 3 NRC license for a given site, the licensing process need'not cause problems in the event that contractors operating the sites 1
were changed.
NRC would have to determine that the new 4
contractor is qualified to engage in the licensed activity, but i
materials licenses, such as broad-scope licenses for medical facilities, are transferred frequently without any significant difficulty and in a timely way.
While there will be an f.mmediate need for a licensing action to transfer the license to the new contractor, there should be no need to entirely relicense the facility until the license comes up for renewal in its normal (Broad scope materials licenses typically have a term of l
course.
ten years.)
NRC and DOE staff have discussed an approach that i
would allow NRC to participate in deciding the qualifications of new contractors in a way that would protect the contracting process and give DOE the flexibility to select the best.
contractor for the given missions and the time to provide for an orderly transition.
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j ODESTT N E.
Both the NRC and the DOE identify licensing to be one of the many issues that needs to be 1
resolved prior to external regulation of DOE l
sites.
In your testimony, you mentioned that the NRC is =w==4ning 4 different licensing arrangements, some of which would be l
problematic in the event that the contractors i
operating the sites changed hands, which j
would raise the question of whether the new I
contractor would have to apply to relicense 1
the facility.
(B)
Why couldn't the sites be owned by DOE, operated by contractors, and regulated by NRC without a licensing arrangement that is analogous to the civilian NRC licensing j
process?
ANSWER.
Sites can be owned by DOE, operated by contractors, and regulated by NRC without a licensing arrangement that is analogous to the civilian NRC licensing process.
The regulatory process can be tailored to the circumstances at hand.
The regulated entity must demonstrate that it is qualified and that the facility has been or will be adequately designed, built, and operated to meet NRC
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OUESTION 6fB).
(continued) 2 safety requirements.
In addition, the regulated entity must establish administrative controls and provisions relating to organization and ranagement, procedures, record keeping, material control and accounting, and management reviews that are necessary to assure safe operations.
Examples of the flexibility in regulatory arrangements are:
under the Uranium Mill Tailings Radiation Control Act, NRC reviews and concurs on the DOE remedial action plan for Title I sites, while under the West Ve11ey Demonstration Project Act, NRC develops decommissioning criteria, reviews DOE documents, and consults with DOE.
For the gaseous diffusion facilities, NRC issues a certificate of compliance.
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OUESTION 7.
It is the Committee's understanding that a unique regulatory relationship with the NRC l
has already been established with respect to I
the protection of national security interests l
in the case of the highly enriched uranium l
(EEU) obtained by the United States from Kazakhstan in the operation known as Project sapphire.
This material is currently being stored at BWX Technologies in Lynchburg, VA, i
where it will be blended down to low enriched uranium (LEU) to be used as fuel in civilian nuclear reactors.
The facilities are regulated via a unique NRC approach that accounts for the fact that parts of the site are subject to IAEA safeguards and inspections.
Since the facility also maintains a national security mission associated with the production of naval l
l reactor fuel, there have been instances where the eligibility of the site for IAEA inspections has been removed so that this l
national security mission can be conducted in f
a secure manner.
J (A)
Do you believe that an analogocs arrangement j
between the NRC and the DOE defense sites I
i C__-_____.____.______
OUESTION 7fA1 (continued) 2 could be negotiated?
Please justify your response.
AHEMER.
I The NRC staff believes that an arrangement between the NRC and the DOE defense sites that is analogous to the arrangement in use at BWX Technologies in Lynchburg, VA, could be negotiated with the qualification noted below.
However, with respect to the arrangement that enabled the International Atomic Energy Agency l
(IAEA) to carry out its safeguards activities in an area collocated with an area involved with activities of national security interest, it is important to note that the scope of these IAEA activities was extremely limited; therefore, there was minimal impact on the operation of the site's safety, safeguards and security systems.
This limited scope of IAEA activity would not likely be pertinent to other locations.
However, if there were a need to address similar conditions at a DOE facility, this may or may not be possible, depending on the nature of the site.
In conjunction with placing excess weapons materials under IAEA safeguards, DOE has already made arrangements for IAEA inspections at Hanferd, Rocky Flats and Oak Ridge (Y-12).
Plans are underway to also have IAEA conduct verification inspections at facilities on the Savannah River site.
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OtmSTION 7.
It is the Ccamittee's understanding that a unique regulatory relationship with the NRC has already been established with respect to the protection of national security interests in the case of the highly enriched uranium (HEU) obtained by the United States from Kazakhstan in the operation known as Project i
sapphire.
This material is currently being stored at BWX Technologies in Lynchburg, VA, where it will be blended down to low enriched uranium (LEU) to be used as fuel in civilian l
l nuclear reactors.
The facilities are regulated via a unique NRC approach that accounts for the fact that parts of the site are subject to IAEA safeguards and inspections.
Since the facility also maintains a national security mission associated with the production of naval reactor fuel, there have been instances where the eligibility of the site for IAEA inspections has been removed so that this national security mission can be conducted in a secure manner.
(B)
Do you believe that an NRC licensing arrangement, as oppored to an NRC
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OUESTION */fB).
(continued) 2 certification or other alternate arrangement, for any DOE facility or class of facilities l
is necessary for the successful external regulation of that facility or class of facilities?
Please justify your response.
ANSWER.
Consistent with the findings of DOE's Advisory Committee on External Regulation of DOE Nuclear Safety and DOE's Working Group on External Regulation, NRC believes that a variety of regulatory mechanisms, including licensing, can be used effectively,and efficiently to regulate DOE nuclear facilities.
As part of the Pilot Program on External Regulation, NRC has considered a full range of regulatory mechanisms, including mechanisms previously employed by NRC under the Atoh'ic Energy Act and by other regulatory agencies (e.g., Federal Aviation Administration, Occupational Safety and Health Administration, Environmental Protection Agency).
Based on initial NRC's staff experience to date with External Regulation Pilot Projects 1 and 2, licenses are the preferred regulatory vehicle to establish a stable, risk-informed, and enforceable set of requirements that could be l
tailored for specific DOE facilities, such as I,awrence Berkeley National Laboratory and Oak Ridge National Laboratory.
Such an L
NESTION */fB1.
(continued) 3 hyproach would be preferred for new nuclear facilities where the substantive design and performance requirements are established j
beforehand, as well as existing facilities that are projected by DOE to continue operating for the indefinite future (at least 5 years).
I Where there is limited design basis information about a DOE facility that had been constructed and operated for many years, a certification approach may be preferable.
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OUESTION 8.
Another issue that has been identified as a
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potentially difficult one is the role of the l
NRC in projects which have national security missions.
The NRC is already involved in 1
several such projects, such as the Portsmouth l
gaseous diffusion plants, the naval nuclear fuel facility in Tennessee and the proposal to dispose of excess weapons plutonium as mixed-oxide fuel in civilian nuclear reactors.
Some of these facilities are 1
l already subject to International Atomic Energy Agency inspections.
(A)
Please outline the national security issues that had to be resolved in these projects prior to NRC licensing.
ANSWER.
l At the NRC regulated fuel cycle facilities and the gaseous diffusion plants, the " national security" issues related to access to classified nuclear material and information, the need for security clearances, and threat assessment. These specific issues were thoroughly addressed and appropriate protective l
measures put in place.
With regard to IAEA safeguards, facilities involved in national security activities are not
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OUESTION 8(A).
(continued) 2 eligible for IAEA safeguards.
Based on NRC experience with the regulation of activities involved with a national security mission, these specific types of national security issues are readily addressed and resolved on the basis of existing laws and regulations.
The introduction to this question notes that NRC is involved in the naval fuel facility in Tennessee.
With the exception of fuel production and core fabrication by the private sector, the Naval l
Reactors organization is assigned responsibility for oversight of all aspects of naval nuclear propulsion (42 U.S.C. 7158, note) including control of five DOE facilities dedicated to their work.
d H.R. 3920 (103 Congress), introduction of which immediately i
preceded the DOE's assessment of whether and how it might be externally regulated, included an exemption for the Naval Reactors program.
Testimony during hearings on this bill acknowledged Naval Reactors's good safety record as, at least in part, justifying this exemption.
Subsequent proposals for and l
studies of external regulation of DOE activities have l
specifically excluded activities directed by Naval Reactors.
Although the NRC reviews designs of naval cores and their associated reactor plants, and certifies naval transportation i
packages, these actions are done at the request of Naval Reactors and not in the context of NRC regulatory jurisdiction.
Naval
OUESTION 8iA).
(continued) 3 Reactors has solicited NRC (and, prior to 1974, AEC) participation in these matters since the beginning of their program 50 years ago.
These actions are not regulatory relationships in the context being contemplated for other DOE facilities.
With reference to the nuclear fuel facility in Tennessee, the NRC licenses and regulates this private company and others which produce and fabricate fuel supplied to Naval Reactors.
These private companies also supply fuel for test and research reactors.
NRC regulation of these private sector suppliers should not be equated with regulation of facilities regulated by Naval Reactors. The NRC staff does not believe NRC regulation of Naval Reactors activities beyond the commercial J
licensees who happen to do Naval Reactors works is needed or warranted.
NRC views its current relationship.with Naval Reactors to be appropriate.
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QUESTION 8.
Another issue that has been identified as a potentially difficult one is the role of the i
NRC in projects which have national security missions.
The NRC is already involved in several such projects, such as the Portsmouth gaseous diffusion plants, the naval nuclear fuel facility in Tennessee and the proposal to dispose of excess weapons plutonium as mixed-oxide fuel in civilian nuclear reactors.
Some of these facilities are already subject to International Atomic Energy Agency inspections.
(B)
Is there any reason to believe that the lessons learned at these sites and issues raised by future pilot projects at DOE defense sites will lead NRC to conclude that NRC regulation of these facilities is impossible?
Please justify your response.
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At this time, there is no reason to believe that lessons learned at these sites and issues raised by future pilot projects would j
lead NRC to conclude that NRC regulation of these facilities is impossible.
Based upon NRC's experience with the specific issues j
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OUESTION 8(B).
(continued) 2 discussed in the response to Question 8(A), there is good reason to believe that DOE defense sites could be regulated by NRC insofar as those sorts of " national security" issues are concerned.
The reason for this confidence is the conscientious decision to maintain comparability between NRC and DOE programs I
to protect weapons-usable material, and maintain the ongoing I
dialogue between NRC and DOE.
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1 OtmSTION 9.
The NRC testimony indicates that DOE's Defense Program facilities will not be included in the pilot program.
Is this because either the NRC or the DOE feel that it is premature to address the more complex issues associated with regulating these facilities at this time, or that these facilities should never be regulated by NRC?
Please justify your response.
ANSMER.
Both the DOE Advisory Committee on External Regulation and the DOE Working Group on External Regulation recommended that all defense nuclear work except the narrow area of " nuclear explosive safety" be externally regulated and, given NRC's experience (with the control of classified information, safeguards and material control and accounting issues)at sites with national security missions, there is good reason to believe that DOE defense sites l
l could be regulated by NRC.
'744 defense facilities are particularly appropriate for NRC regulation, and DOE and NRC are pursuing possible external regulation of a mixed-oxide fuel fabrication facility and the Hanford Tank Waste Remediation System.
Indeed the House Committee on Appropriations has directed that all new DOE nuclear facilities, with the exception j
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of the naval reactors program, be constructed in accordance with i
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QUESTION 9.
(continued) 2 NRC licensing requirements, "in anticipation of future NRC l
l regulation."
House Report 105-581, June
'.5, 1998, at 142.
However, some of the issues associated with regulating these facilities are in fact more complex than the issues associated with regulating most non-defense facilities.
For example, NRC l
would have to acquire more expertise in the process-specific activities at the weapons facilities, and legislation would have to define carefully what, if any, portion of these' activities d
might remain outside NRC jurisdiction.
The DOE Working Group i
recommended that these facilities be transferred to NRC's jurisdiction only at the end of a ten-year transition period, after all other DOE nuclear facilities had been transferred.
The pilot program was to last only two years and has focused on sites that could be brought within NRC's jurisdiction sooner than most I
defense facilities could be.
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OUESTION 10.
There are many civilian DOE sites that NRC does not currently have the expertise to regulate.
For L
example, while the NRC has significant experience l
in the regulation of nuclear rectors, it does not currently regulate accelerators or nuclear weapons i
production facilities.
Please describe the steps 1
NRC would take in order to acquire this expertise.
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JE9MER.
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l The NRC would envision the following steps to augment its 1
existing experience based on the actions taken to obtain l
expertise needed to regulate the gaseous diffusion plants.
Many of the DOE facilities currently not regulated by NRC rely on l
engineered features to control safety, safeguards, and security L
risks to acceptable levels.
NRC has extensive experience across a great many types of facilities, including, academic, industrial f
and commercial.
In addition, NRC currently regulates reactors, i
fuel facilities, and other facilities, including former DOE defense program facilities (the gaseous diffusion plants) that principally rely on the same or similar engineered features to control risks.
Further, NRC currently regulates many of the same i
or similar types of nuclear materials including special nuclear materials used in the subject DOE facilities.
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OUESTION 10.
(continued) 2 l
l Although NRC has experience regulating the same and similar l
nuclear materials and engineered safety features relied on to control risks in DOE weapons and accelerator facilities, NRC as an agency is not experienced with regulating certain process-specific activities and a few of the nuclear natorials in l
the subject DOE facilities.
Some NRC staff have worked for DOE at the subject facilities prior to joining the NRC.
NRC can enhance and add staff expertise for regulating such DOE facilities as follows:
Current staff expertise can be enhanced with combinations of training and site visits.
If necessary, increasing the number of staff with expertise can be accomplished through recruitment since most of the subject DOE facilities have been operated by contractor staff, which has been significantly reduced in recent years and is available in the job market.
Similarly, contractors experienced with such DOE facilities are available to support NRC through contractual arrangements.
j OUESTION 11.
Civilian nuclear reactor licensees f*urrently prepare for decommissioning and decontamination by j
contributing a percentage of the electricity rates they collect into a fund that will pay for these
{
activities.
No such funding mechanism is in place for DOE facilities.
In addition, NRC testimony states that DOE's decontamination and decommissioning priorities and requirements are different from NRC's.
(A)
Do you believe that these issues can be worked out in a manner that is reflective of the fact that government-owned facilities are inherently different from civilian-owned facilities, perhaps within a negotiated alternative regulatory framework between DOE and NRC?
Please justify your response.
i ANSWER.
l The NRC believes that issues relating to decommissioning and decontamination can be worked out in light of the fact that government-owned facilities are inherently different from civilian-owned facilities.
Existing NRC reguistions require completing decommissioning of
.s OUESTION 11(A).
(continued) 2 materials facilities within two to five years of cessation of activities.
Some flexibility exists for longer time frames, if justified.
Reactor decommissioning involves longer time frames (e.g., 60 years). However, it may be appropriate to recognize, either through legislation or by regulation, the complexity and costs of decommissioning DOE facilities and the need to decommission them in an orderly manner.
For example, the regulations could allow for the SAFSTOR option that exists for power reactors.
Legislation would not be required.
1 With regard to funding, NRC regulations require licensees to accumulate funds dedicated for decommissioning expenses. DOE i
i indicates that it will fund decommissioning, but any legislation should specify that the Federal Government will be responsible, which could obviate the need for submitting decommissioning cost estimates.
Existing NRC regulations specify radiological criteria for license termination that are dose-based and allow for unrestricted or restricted release of a licensed site.
In l
addition, DOE imposes cleanup standards on a site-specific basis.
Therefore, it will be necessary for NRC and DOE to recognize, either through legislation or by regulation, the cleanup criteria to be applied to DOE sites under NRC jurisdiction.
f
j OUESTION 11(A).
(continued) 3 1
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OUESTION 11.
Civilian nuclear reactor licensees currently 1
prepare for decommissioning and decontamination by contributing a percentage of the electricity rates they collect into a fund ths.t will pay for these activities.
No such funding mechanism is in place for DOE facilities.
In addition, NRC testimony I
states that DOE's decontamination and decommissioning priorities and requirements are differsnt from NRC's.
I (B)
Please describe the decontamination and decommissioning plans for all the sites (i.e.
the gaseous diffusion facilities, etc.)
currently regulated by NRC that do not i
prepare for those activities in the manner by which most civilian nuclear reactor licensees do.
Do you believe these plans will ensure the safe decontamination and decommissioning of these facilities?
Please justify your response.
ODESTION 11fB).
(continued) 2 A][3333 The NRC knows of no reason why these plants could not be safely decontaminated and decommissioned, given that adequate funding will exist, and NRC oversight will ensure compliance with decommissioning criteria.
For special case facilities involved with Government contracts or where the licensee is a Government agency, an acceptable mechanism for providing decommissioning financial assurance is a Government statement of intent.
A statement of intent consists of a decommissioning cost estimate and a commitment from the involved Government agency to provide funds for decommissioning when needed.
Under the existing regulations, DOE could use a statement of intent to provide required financial assurance for l
decommissioning.
i with regard to the gaseous diffusion plants, under the Energy Policy Act of 1992 and the lease agreement with the Department of Energy (DOE), the responsibility for decontamination and decommissioning of these plants was retained by the DOE.
The United States Enrichment Corporation (USEC) is financially responsibis for the disposal of low-level waste, hazardous waste, and mixed waste generated by USEC and for the cost to dispose of
OtESTION 11fB1 (continued) 3 the depleted uranium or tails that_are generated by the enrichment process.
Therefore, USEC was not required to sukunit plans to decommission the sites.
USEC, as a Government corporation, is currently utilizing a statement of intent to assure funding for USEC's limited decommissioning liabilities.
i Upon privatization, the privatized corporation will be required to propose a new arrangement.
USEC has stated that they plan to use an executed sinking fund arrangement, a standby trust l
l arrangement, and/or a payment surety bond to set aside funds for the ultimate disposition of its tails and wastes.
Under the Privatization Act, DOE is responsible for the actual dispositioning of the tails.
Currently the NRC would not be involved in the decontamination and decommissioning of the gaseous diffusion plants.
At the end of plant life, the gaseous diffusion plants will be returned to DOE for decommissioning.
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i DDEETION 11.
Civilian nuclear reactor licensees currently prepare for decommissioning and deconte.mination by contributing a percentage of the electricity rates they collect into a fund that will pay for these activities.
No such funding mechanism is in place for DOE facilities.
In addition, NRC testimony states that DOE's decontamiitation and i
decommissioning priorities and requirements are different from NRC's.
l (C)
In what specific ways do the NRC's l
decontamination and decommissioning i
i priorities differ from DOE's?
Do you believe j
that these differences can be successfully resolved if NRC is charged with externally regulating DOE facilities?
Please justify your response.
ANJilER-Existing NRC regulations for materials facilities require comp 3eting decommissioning within 2 to 5 years of cessation of
]
activities.
DOE's decommissioning program will continue for decades with DOE setting priorities for decommissioning based upon hazards, availability of technologies, appropriations, and other considerations.
NRC believes that differences between DOE and ERC in decontamination and decommissioning priorities can be 1
i
j OtE!r!" ION 11(C).
(continued) 2 1
successfully resolved if NRC is charged with externally j
regulating DOE facilities.
l l
NRC priorities are based, first of all on safety and protecting 1
the public from immediate threats to health and safety.
For l
example if a licensee has demonstrated that contamination levels are under control, a lower priority would be established as.
conqpared to the opposite situation in which there is an apparent opportunity for the spread of contamination.
NRC priorities are also based on licensee needs and schedules to minimize delays in license remediation operations.
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o QUESTION 12.
In your testimony, you stated that in the Memorandum of Understanding between DOE and NRC, that "if the DOE and the NRC agreed, legislation would be prepared and submitted promptly for Congressional consideration to give the NRC regulatory authority for a specific pilot facility or class of facilities."
Based on the current l
l status of the pilot programs, do you see any reason why legislation that would transfer regulatory authority over the Energy Research J
facilities from the DOE to the NRC could not be immediately prepared and submitted?
If not, when l
could such legislation be prepared and submitted?
l-ANSWER.
The NRC does not see any insurmountable obstacles to regulating DOE Energy Research facilities.
The Commission itself is currently considering, in some detail, a range of issues that should be addressed in legislation that would give NRC regulatory authority over certain DOE facilities.
Although the Department has not yet expressed a final view on these issues, the I
commission, for its part, is prepared to complete its consideration of these matters on a schedule desired by the Congress.
Legislation reflecting the Commission's decisions on these issues could be drafted and submitted in short order.
j
QUESTION 13.
What is the estimated cost (of the NRC portion) of regulating the Lawrence Berkeley National Laboratory?
ALilER.
NRC estimates the initial cost of licensing Lawrence Berkeley National Laboratory (LBNL) to be on the order of $50,000.
l This estimate is based on the foliowing assumptions:
l Average professional staff time to process applications for licenses of broad scope for possession and use of byproduct material issued pursuant to 10 CFR Part 33 l
for research and development (that do not authorize I
i commercial distribution) plus management and support time (approximately 70 I
hours or 0.04 FTE).
If NRC were to regulate LBNL accelerators, license l'
reviewers and inspectors would need training on the safety issues associated with them (several people spending several weeks in formal and informal training) plus the first-time review of an application to license 1
the accelerators (approximately 0.3 FTE).
OUESTION 13.
(continued) 2 In addition, there would be a need for a rulemaking governing the safe use of accelerators (between 1 and 2 FTE).
Because this rule would be applicable to about 10 DOE facilities having large accelerators, which may eventually be subject to NRC regulation in the future, about 0.2 FTE should be allocated to LBNL.
The annual cost to regulate LBNL is estimated to be on the order of $20,000.
This figure is based upon licensing and inspection activities.
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,,..,.,n--.
OUESTION 14.
Using the example of LENL, please extrapolate to estimate the cost of regulating all Energy Research sites.
j NIBMS l
The NRC cannot extrapolate the cost of regulating all Energy Research sites based solely upon the information gained in the LBNL pilot. LBNL is a small, low-risk facility which, although excellent as an initial pilot that enabled NRC to learn the DOE j
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safety system and activities, did not provide sufficient data for extrapolating costs of NRC regulating other Energy Research facilities.
NRC currently believes that estimating the cost of regulating DOE Energy Research facilities can be accomplished upon completion of the Oak Ridge National Laboratory / Radiochemical Engineering Development Center (ORNL-12DC) pilot project (Fall 1998), and upon completion of the first pilot project in FY 1999, Pacific Northwest National Laboratory (PNNL) (April 1999).
OUESTION 15.
What environmental health and safety role do you envision that DOE would play if the NRC formally assumed responsibility for regulating a facility or class of facilities?
AliaMER.
If DOE is the licensee, DOE would be fully responsible for meeting NRC environmental health and safety regulations, but would not need a separate self regulatory effort.
If DOE is not the licensee, the role DOE would play would likely depend upon the level of environmental health and safety risk involved at the facility and the contractual arrangement with the Mt0 contracter.
Thus, DOE would have at least a corporate-type interest in carrying out safe operation of its facilities in compliance with the applicable safety standards.
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j
oterrrent 16 The Consnittes understands that DOE indemnifies its contractors through the Price-Anderson Indemnification coverage which insures contractors against loss if certain damages are incurred.
l Could you elaborate on whether this would have to l
change under NRC regulation, and if so, how?
l ANERIER.
Under the Atomic Energy Act of 1954, as amended, DOE is required by statute to indemnify all DOE contractors, at any level, for contract activities which may result in public liability unless l
l the activity is subject to an NRC requirement for indemnification.
NRC mandatory indemnification applies only to i
production and utilization facilities licensees, such as commercial power reactors and research reactors.
NRC l
discretionary authority to extend indemnification for other-types of licensed activities has seldom been exercised.
l Therefore, absent legislative change, under NRC regulation, DOE would continue to be required to extend indemnification for all l
contractor activities except for such facilities as research reactors for which there is NRC indemnification.
For those facilities which would be subject to NRC indemnification (e.g.,
research or test reactors), NRC's indemnification amount is less than DOE's indemnification amount.
The implications of this
a OUESTION 16.
(continued) 2 issue need to be further explored when a non-power reactor becomes part of the pilot program.
However, the statute also subjects DOE contractors with Price-Anderson indemnification to the imposition of DOE civil penalties for violation of any DOE rule, regulation, order or contract.
Therefore under NRC regulation, contractors with DOE Price-Anderson indemnification could continue to be subject to DOE civil penalties as well as to NRC enforcement mechanis:as.
This problem could be resolved either by amending the statute or by DOE issuing an exemption from applicability of DOE rules, regulations, and orders for NRC regulated entities.
Note that current Price-Anderson indemnification provisions expire August 1, 2002, and both NRC and DOE are engaged in preparing reports due to Congress August 1, 1998, addressi::p the need for continua *lon or modification of the Price-Anderson provisions.
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OUESTION 17.
DOE, NRC and OSHA have been discussing external regulation for some time.
(A)
Please name and describe the steering l
committees, interagency panels or other i
working groups the three agencies have in i
place to study this issue.
J l
munsa.
4 NRC has a staff-level task force for external regulation of DOE (External Regulation of DOE ~ Task Force (ERDF)) which is chaired l
)
by the Director of the Office of Nuclear Material Safety and Safeguards.
A task force deputy chairman manages the day-to-day l
activities with regular briefings to management and the commission.
The task force has three full-time members, three part-time members and uses specialized licensing reviewer and inspectors to carry out the simulated regulation at the DOE facilities.
In addition, NRC has an Executive Committee for l
External Regulation, comprised of NRC Senior Management l
l representative of the major NRC functions.
This group meets periodically to review the task force progress, activities and findings.
i DCE has a similar staff-level task force and a senior executive steering committee in place.
The task force conducts day-to-day i
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ODESTION 17fAl.
(continued) 2' activities and the steering committee is responsible for providing policy and legal guidance.
OSHA also has a team working on external regulation of DOE.
NRC is not aware of *ormal titles for the DOE or OSHA groups.
I A joint NRC/ DOE working group comprised of members of the NRC and the DOE r,taff-level task forces is responsible for conducting the pilot projects, for producing the joint reports for each pilot project, and for conducting the analysis and completing the final overall pilot program report $.
Both DOE and NRC are part of the National Association of Public Administration (NAPA) forum which.
examines issues ralated to OSHA and its regulation of DOE.
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ODESTION 17.
DOE, NRC and OSHA have been discussing external regulation for some time.
(B)
Are representatives from all three agencies members of each of these groups?
If not, why not?
ANSMER.
The interagency groups are the NRC/ DOE pilot program task force and the NAPA forum.
Since OSHA chose not to be routinely an integral part of the pilot program task, it is not an official l
member of the pilot program task force.
However, where OSHA is l
conducting a pilot project at the same location as the NRC pilot
- project, e.g.,
at the Oak Ridge National Laboratory / Radiochemical Engineering Development Center (ORNL/REDC) OSHA and NRC hold joint meetings with the site and DOE.
However, during the National Association of Public id=4nistration forum meetings, NRC, DOE, and OSHA discuss the l
(
results of the respective pilot projects.
o i
OUESTION 17.
DOE, NRC and OSHA have been discussing external regulation for some time.
(C)
Who coordinates the interagency meetings?
g ggER.
l The point person for external regulation at NRC is John Austin, the Deputy Chairman of the External Regulation of DOE Task Force.
He coordinates NRC attendance at interagency meetings.
John Tseng has this responsibility for DOE.
NRC is not aware of a specific individual at OSHA who coordinates interagency meetings.
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i OUESTION 17.
DOE, NRC and OSHA have been discussing external regulation for some time.
(D)
Is there one ' point person' that serves as the agency lead at each of the three agencies?
Who is this person at NRC7 l
ANalER.
l For day to day contact, the point person is John Austin, the
)
l Deputy Chairman of the External Regulation of DOE Task Force.
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ODESTION 18.
Your testimony states that modifications to NRC regulations 10 CFR Parts 70, 73, and 74 may be required in order to " reflect the quantities of
(
certain radionuclides in use at this facility."
(A)
What specific modifications do you feel may be necessary?
Please justify your response.
l ANEMER.
The Nuclear Regulatory Commission's review of the Radiochemical Engineering Development Center (REDC) identified two issues that may warrant revisions to NRC regulations in 10 CFR Parts 70, 73, and 74 to resolves (1) distinction between the properties of the various isotopes of plutonium, and (2) control of fissile and fissionable nuclear materials other than plutonium and uranium.
NRC's current requirements do not distinguish between the various isotopes of plutonium, even though their safety and safeguards risks vary considerably.
For example, plutonium-239 is much more attractive for theft and diversion and poses a greater nuclear criticality hazard than plutonium-238.
Consequently, if NRC were to regulate DOE activities involving plutonium, there would be merit to reviewing each reference to plutonium in 10 CFR Parts
-70, 73, and 74 to ensure that the requirements are appropriate and that the regulatory burden associated with the requirements is justified.
o OUESTION 18(A).
(continued) 2 In addition, the REDC processes certain fissionable and fissile materials that are not explicitly included in the definition of special nuclear material in the Atomic Energy Act of 1954, as amended.
Under the Atomic Energy Act and the Statute of the j
l International Atomic Energy Agency, these materials are not l
currently controlled as special nuclear material or special l
fissile materials, respectively.
These actinide isotopes materials pose hazards and provide benefits that are not characteristic of other byproduct materials because they are fissionable and some are fissile.
Consequently, controls are warranted to ensure their safe handling and protection.
I considering their potential for use in radiological sabotage and their potential strategic significance and importance, DOE has implemented appropriate measures to ensure against loss, theft, and diversion of the materials under a graded safeguards program.
As a result, it would be beneficial to control these other nuclear materials in accordance with NRC requirements in 10 CFR Parts 70, 73, and 74, or comparable DOE requirements.
Appropriate control of these other nuclear materials could be accomplished without designating them as special nuclear material in accordance with section 51 of the Atomic Energy Act.
If NRC l
were to regulate REDC and similar DOE facilities with appreciable inventories of these other nuclear materials, NRC could expand the scope of application of regulations in 10 CFR Parts 70, 73, i
i
l OUESTION 18(Al.
(continued) 3 l
and 74 to include these materials without designating them as l
This approach would achieve the benefits of enhanced control and protecti N of the materials, while avoiding the domestic and international impacts and burdens l
i associated with the more direct approach of modifying the l
definition of special nuclear material.
In addition, the l
l requirements in 10 CFR Part 30 would have to be clarified in l
terms of when these materials are subject to the requirements in 10 CFR Parts 70, 73, and 74.
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ODESTION 18.
Your testimony states that modifications to NRC regulations 10 CFR Parts 70, 73, and 74 may be i
required in order to " reflect the quantities of 1
certain radionuclides in use at this facility."
l (B)
Please describe the process by which these i
modifications would be made, including an j
1 l
estimate of how long they will take to complete.
ANSWER.
Any changes to NRC regulations to address these issues would be developed and proposed in accordance with the Administrative Procedure Act.
Assuming sufficient NRC staff resources are available to support the rulemakings, final action on the proposed revisions could be completed within two years of initiation.
The rulemakings would be conducted during the l
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transition period.
If NRC regulated DOE nuclear facilities prior to the completion of the rulemakings, NRC would consider appropriate regulatory relief through licenses conditions and/or a transition period to avoid imposing an unjustified burden, while ensuring appropriate safety and safeguards controls of the material.
t
OUESTION 18.
Your testimony states that modifications to NRC regulations 10 CFR Parts 70, 73, add 74 may be required in order to " reflect the quantities of.'
certain radionuclides in use at this facility."
(C)
Will these modifications, as well as any l
modifications deemed necessary by future pilot programs or alternate sit.3 assessments be subject to public meetings and/or Congressional review?
Please justify your response,,
ANSER.
Any rulemakings deemed necessary based on the pilot programs would be subject to the full range of procadures in the Administrative Procedure Act, including public comment periods.
There would be the possibility of holding public meetings and l
other methods to ensure a thorough and effective public review of the revisions.
In addition, such rulemakings and associated guidance for implementation would be subject to review by Congress and the Office of Management and Budget in accordance with the Small Business Regulatory Enforcement Fairness Act.
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CPJESTION 19 During the 104th Congress, Representatives Roemer, Doyle, Jacobs a;v1 Klug introduced H.R.1510, a bill that provided for the external regulation of non-defense Department of Energy laboratories.
(A)
Please comment on what you consider to be the benefits and/or problems of this legislation, including suggestions for correcting s,ny problems associated with its implementation.
&HEMER.
The key provision of H.E. 1510, the " Department of Energy Laboratories Efficiency Improvement Act,* is section 2,
" Elimination of Self-Regulation":
Notwithstanding any other provision of law, the Department of Energy shall not be the agency of izq:4e nentation, with respect to departmental laboratories, other than i
departmental defense laboratories, of Federal, State, and i
local environmental, safety, and health rules, regulations, orders, and standards.
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1 One problem with this provision is that the term = implementation" l
is not defined, and is susceptible to more than one interpretation.
It could be interpreted in this context to mean Q_---__---__-_-_-__----_-___-___-______-_________.____.-___-__.__--______.
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OUESTION 19(Al.
(continued) 2 the actual conqpliance with or carrying out of the safety and health measures themselves.
Contrary to this possible interpretation, and more consistent with the title of the section, NRC would assume that this provision intended to prevent DOE from regulating its own activities.
Under external regulation, DOE, as the owner of these facilities, would st.ill have at least a corporate-type interest in the carrying out of safe operations of its facilities and in compliance with applicable safety standards.
NRC believes that the intended meaning of this provision may be more clearly expressed by explicitly stating that DOE may not " regulate the radiological safety activities of departmental laboratories".
Furthermore, while the title of section 2 purporte: to eliminate self-regulation, the prohibition on DOE's being the " agency of implementation" with regard to certain rules, regulations, orders, and standards does not clarify what agencies are to assume such responsibility.
For instance, under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, NRC received licensing and associated regulatory authority over only several limited categories of DOE facilities which do not include DGE labs.
Therefore, this provision prohibiting DOE from being the ' agency of implementation' does not automatically enable NRC to assume regulatory responsibility.
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o OUESTION 19fAl.
(continued) 3 NRC would suggest that if the intention is that NRC should assume regulatory autlerity, the bill should provide explicit authority to NRC to regulate these facilities.
In regard to describing the regulatory authority potentially to be given to NRC, it should be taken into consideration that in the first pilot project at Lawrance Berkeley National Lab, NRC has identified a subject area of lab operations involving accelerators and naturally occurring and accelerator-produced radiation (NARM), where NRC dots not currently have any authority to regulate.
If it were intended that NRC were to be the single external regulator for all sources of ionizing radiation at the DOE labs, it would be necessary to provide that explicit new authority to NRC to regulate accelerators and NARM at DOE labs.
The intended scope of other Federal, State, and local agencies' regulatory authority over DOE labs should also be stated explicitly.
Finally, if this bill were amended to address the issues identified above, adequate resources and a reasonable transition period need to be provided to avoid unintended gaps in regulatory oversight of these facilities, to facilitate transfer of
s G ERIZON 19fA)-
(continued) 4 regulatory jurisdiction, and to avoid disruption of the regulatory oversight of commercial nuclear facilities, i
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OUEsTION 19.
During the 104th Congress, Representatives Roemer, Doyle, Jacobs and Klug introduced H.R. 1510, a bill that provided for the external regulation of non-defense Department of Energy laboratories.
(B)
Does the NRC support the passage of this legislation in its current form?
Please justify your response.
ANSMER.
NRC does not support the passage of this legislation in its current form.
The reasons the NRC does not support this legislation are smnmarized below.
As noted in response to part (A) of this question, the key provision of H.R. 1510, the " Department of Energy Laboratories Efficiency Improvement Act," is section 2,
" Elimination of self-Regulation":
i Notwithstanding any other provision of law, the Department l
l of Energy shaill not be the agency of implementation, with
(
t respect to departmental laboratories, other than departmental defense laboratories, of Federal, State, and l
l local environmental, safety, and health rules, regulations, i
orders, and standards.
ODESTION 19(15).
(continued) 2 One problem with this provision is that the term
- implementation" is not defined, and is susceptible to more than one interpretation.
It could be interpreted in this context to mean the actual cospliance with or carrying out of the safety and health measures themselves.
Contrary to this possible interpretation, and more consistent with the title of the section, NRC would assume that this provision intended to prevent DOE from regulating its own activities.
Under external regulation, DOE, as the owner of these facilities, would still have at least a corporate-type interest in the carrying out of sr.fe operations of its facilities, in contpliance with applicable safety standards.
Furthermore, while the title of section 2 purports to eliminate self-regulation, the prohibition on DOE's being the " agency of implementation" with regard to certain rules, regulations, orders, u d standards does not clarify what agencies are to assume such responsibility.
For instance, under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, NRC received licensing and associated regulatory authority over only several limited categories of DOE facilities which do not include DOE labs..Therefore, this provision prohibiting DOE frean being the " agency of implementation" does
OUESTION 19iB).
(continued) 3 not automatically enable NRC to assume regulatory responsibility.
In regard to describing the regulatory authority potentially to be given to NRC, it should be taken into consideration that in the first pilot project at Lawrence Berkeley National Lab, NRC has identified a subject area of lab operations involving accelerators and natural y occurring and accelerator-produc*d radiation (NARM), where NRC does not currentily have any authority to regulate.
If it were inteaded that NRC were to be the single external regulator for all sources of ionizing radiation at the DOE labs, it would be necessary to provide that explicit new authority to regulate accelerators and NARM at DOE labs.
The intended scope of other Federal, State, and local agencies' regulatory authority over DOE labs should also be stated explicitly.
The pilot at LBNL also identified a potential need for legislative language and implementing rulemaking to be explicit as to which facilities or aspects of each site are to be regulated by NRC, specifically with respect to the term " legacy material".
L ___
a OUEST10tf 19fB).
(continued) 4 Finally, if this bill were amended to address the issues identified above, adequate resources and a reasonable transition period need to be provided to avoid u2 intended gaps in regulatory oversight of these facilities, to facilitate transfer of regn2atory jurisdiction, and to avoid disruption of the regn2atory oversight of commercial nuclear facilities.
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pDESTION 20.
The DOE has had a long and unfortunate history of retaliating against employees who bring health and j
safety concerns to their e gloyers' attention.
A May 21, 1998 article in USA Today cited a videotaped deposition by former Energy Secretary j
l Hazel O' Leary, who stated that there "has been a practice of repeated and long-term reprisal" against DOE whistleblowers and that despite the reforms that she attempted to implement during her tenure at DOE, that 'the old way, I suspect, is slipping back."
(A)
Don't you think that having a regulatory body that is entirely removed from the people doing the hiring and the firing would greatly increase the employees' comfort with bringing their concerns to the table and their confidence that their concerns would be addressed without retribution by their employers? If not, please -lustify your response.
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i d.
ODESTION 2DfA1.
(continued) 2 AMEMER.
Yes, we believe that our independent organization provides the opportunity for the openness that an effective safety culture requires.
In its regulatory role, NRC provides an independent avenue for licensee employees to raise safety concerns and have them resolved.
NRC regulations and procedures which are described in the second portion of part (c.) of this response attempt to ensure that NRC-licensees' employees feel free to raise safety concerns to their employer er to ths NRC without fear of retribution.
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ODESTION 20.
The DOE has had a long and unfortunate history of I
retaliating against employees who bring health and f
safety concerns to their employers' attention.
A May 21, 1998 article in USA Today cited a videotaped deposition by former Energy Secretary Hazel O' Leary, who stated that there 'has been a practice of repeated and long-term reprisal" against DOE whistleblowers and that despite the l
reforms that she attempted to implement during her tenure at DOE, that "the old way, I suspect, is l
slipping back.*
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(D)
Don't you think that the fact that external l
regulation will rect've the responsikliity of making employee c u1 M and safety decisions I
from the people who make personnel decisions, thereby removing a potential conflict of interert, illustrates a benefit of external regulation that is of equal if not greater l
importance than saving money?
If not, please i
j justify your response.
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OUESTION 20 f B) -
(continued) 2 AHalER.
NRC agrees that the addition of the NRC as an external regulator would provide an independent avenue for raising safety concerns, and apply the force of NRC regulations and enforcement procedures i
i to prohibit digerimination and encourage resolution of safety I
concerns.
Nevertheless, the responsibility for meeting the j
l safety regulations would remain with t.nc licensee and their
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NRC is not able to quutify this benefit relative to
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the cost savings.
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OmtSTION 20.
The DOE has had a long and unfortunate history of retaliating against employees who bring health and safety concerns to their employers' attention.
A May 21, 1998 article in USA Today cited a videotaped deposition by former Energy Secretary Hazel 0*I,eary, who stated that there "has been a practice of repeated and long-term reprisal' against DOE whistleblowers and that despite the refoms that she attempted to implement during her tenure at DOE, that "the old way, I suspect, is slipping back.*
(C)
Please describe the process by which a) an NRC employee and b) an WRC-licensee employee would bring forward concerns related to the safety and healch of either the empicyees or the general public.
Please include in your description the legal projections that are currently in place to guarantee that such an -
employee would not be subject to retaliation by his/her employer.
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,8 OL'ESTION 20 (c1 (continued) 2 AtLillER.
(a)
There are formal and informal procedures designed to provide a means for NRC employees to disagree with a position taken by NRC management on an issue, including matters related to public health and safety. These procedures are found in NRC Management Directive 10.159 through which employees may raise ' differing professional i
views and opinions." NRC Management Directive 10.160 formalizes an I
'open door policy" that enables employees to meet with Agency management at any level regarding any matter of concern. Either of these procedures may be used by employees to express concerns j
related to the health and safety of the public or other employees.
In addition, if anyone, including an NRC employea believes there is a safety concern that also involves NRC wash, fraud, or abuse, they may report this to the Office of the Inr.,pector General at the NRC.
Employees who believe they have been retaliated against for raising health and safety concerns may seek redress under the appliceble grievance procedure (NRC Management Directive 10.101 or, for bargaining unit esqployees, the collective bargaining agreement l
between NRC and the National Treasury Employees Union).
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OUESTION 20fC1 (continued) 3 Moreover, NRC employees (like all Federal snqployees) may file a complaint with the office of the Special Counsel pursuant to 5 U.S.C Chapter 12, Subchapter II. The Office of Special Counsel is authorized to investigate and take appropriate action based upon, among other
- things, alleged retaliation for " disclosure of information by an an.ployee.or applicant which the employee or applicant reasonably believes evidences...a substantial and specific danger to public health and safety." 5 U.S.C. 2302 (b) (8).
If not successful before the office of Special Counsel, employees claiming retaliation for making such disclosures may file an action with the Merit Systems Protection Board (MSPB) pursuant to 5 U.S.C.
Chapter 12, Subchapter III.
MSPB has a
broad range of administrative authority for reviewing and adjudicating such j
matters.
(b) NRC regulations and practican encourage NRC-licensee employees to come forward with safety concerns.
NRC recognizes that it is licensees, not the NRC, who have the first responsibility for safety, therefore, NRC encourages employees to first raise safety concerns with their employer or the licar.see. However, employees may report concerns directly to the NRC by discussing the issues with an NRC staff member, calling the NRC's ' Safety Hot 31ne (800-l 695-7403), or writing a letter to the $RC.
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OUESTION 20fC).
(continued) 4 l
Each region and the two licensing offices (Nuclear Reactor Regulation and Nuclear Naterials Safety and Safeguards) have l
assigned an Allegation Coordinator to coordinate review and resolution of safety concerns reported to the NRC.
To resolve an i
allegation, NRC may perform an inspection or investigation, refer the issue to another federal or state agency, refer the issue to the licensee to perform a review of the concern, or determine that no action is necessary.
After completion of action on an allegation, the NRC sends a, letter to the individual who submitted i
the concern explaining what action the NRC'took to review the safes / concern and whether the concern was substantiated.
Section 211 of the Energy Reorganization Act of 1974, as amended, prohibits discrimination by an employer (including NRC and Agreement State licensees and applicants, NRC licensees' contractors and subcontractors, DOE contractors and subcontractors) against an employee for raising safety concerns to the employer or in any proceeding under the Atomic Energy Act.
Mscrimination includes discharge and other actions that relate to compensation or
- terms, conditions, and privileges of employment.
Such l
discr4=4n= tion is prohibited by the Commission's regulations (e.g.,
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10 CFR 19.20, 30.7, 40.7, 50.7, 60.9, 61.9, 70.7, and 72.10).
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DUESTION 20fc)-
(continued) 5 subcontractors, including denying,
- revoking, or suspending a licase, imposing civil penalties, and even criminal sanctions in some cases.
Section 211 of the Energy Reorganization Act of 1974, as amended, also provides that an employee who believes that discrimination has occurred may seek a personal remedy, such as reinstatement or back pay, by filing a complaint within 180 days of the discriminatory act with the Department of Labor. It should be noted, as mentioned above, that employees of contractors or subcontractors of DOE who are indemnified under the Price-Anderson provisions are also protected from discrimination under section 211.
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