ML20202E334

Requests Commission Approval of MOU W/Doe

ML20202E334
Person / Time
Issue date:	10/16/1997
From:	Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
SECY-97-237, SECY-97-237-01, SECY-97-237-1, SECY-97-237-R, NUDOCS 9712050322
Download: ML20202E334 (15)

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POLICX ISSUE (Notation Vote)

October 16_1921 SECY-97-237 EQB: The Commissioners EROM: L. Joseph Callan Executive Director for Operations

SUBJECT:

MEMORANDUM OF UNDERSTANDING WITH THE DEPARTMENT OF ENERGY PURPOSE

• To obtain Commission approval of a Memorandum of Understanding with the Department of Energy (DOE).

BACKGROUND.

The March 28,1997, Staff Requirements Memoran' 4um (COMSECY-96-053 ' Oversight of the Department of Energy" (DSI 2)) directed the staff b prepare a Memorandum of Understanding (MOU) to establish the framework for analyzin,, the complex legislative and regulatory issues involvec in transitioning to the Nuclear Regulatory Commission, oversight of certain DOE nuclear facilities.

DISCUSSION:

NRC staff has been working with DOE staff to prepare such a document, focused on carrying out a pilot program of simulated regulation at a number of DOE nuclear facilitiet,. At the same time, the No agency staffs have been developing a work plan to be used as the basis for achieving tt:e objectives of the pilot program. A draft of the MOU was sent to the Commission CONTACTS: Kathryn L. Winsberg, OGC NOTE: TO BE MADE PUBLICLY AVAILABLE (301)415-1641 WHEN THE FINAL SRM IS MADE AVAILABLE Patricia A. Rathbun, NMSS 0 C '

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on August 19,1997. Almost all of the changes since that version have been minor editorial modifications. The substantive issue that has been eliminated from the proposed MOU is the explicit discussion of the possibility of seeking legislation for a facility or class of facilities before the conclusion of the pilot program. i DOE has internally coordinated the proposed MOU with allinvolved organizations. By letter dated October 9,1997, Dr. O'Toole sent the attached MOU to Secretary Pena, with a recommendation that it be signed.

COORDINATION:

The Office of the General Counsel has ruviewed this paper and has no legal objection. The Office of the Chief Information Officer has reviewed this paper and has no objection. The Office of the Chief Financial Officer has reviewed this paper for resource implications and has no objection.

HECOMMENDATION:

The NRC staff recommends that the Commission approve the attached proposed MOU.

SCHEDULING:

Previously, the staff has informed the Commission of its intent to initiate the pilot program one week after the sig iing of the MOU. There is uncertainty in the timing of the MOU and limited availability of Lawn.nce Berkeley National Laboratory (the first pilot facility) personnel during much of November i997. Therefore, unless directed otherwise, the staff intends to initiate that pilot program on Octoar 29,1997, whether or not the MOU is officially signed.

L. Mseph Callan Exo::utive Director for Operations Attac,hment: Proposed MOU Commissioners' cominents or consent should be provided directly to the Office of the Secretary by COB Wednesday, October 22, 1997.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Monday, October 20. 1997, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

DISTRIBUTION:

Commissioners OCA OGC CIO OIG CFO OPA' EDO SECY

MEMORANDUM OF UNDERSTANDING BETWEEN THE U.S. DEPARTMENT OF ENERGY AND THE U.S. NUCLEAR REGULATORY COMMISSION PILOT PROGRAM ON EXTERNAL REGULATION OF DOE FACILITIES BY THE NRC i

Federico F. Pena Date Shirley A. Jackson Date Secretary of Energy Chairman U.S. Department of Energy U.S. Nuclear Regulatory Commission f-

I MEMORANDUM OF UNDERSTANDING BETWEEN THE U.S. DEPARTMENT OF ENERGY AND THE l U.S. NUCLEAR REGULATORY COMMISSION PILOT PROGRAM ON EXTERNAL REGULATION OF DOE FACILITIES BY THE NRC

1. PURPOSE P

The purpose of this Memorandum of Understanding (MOU) between the U.S. Department of Energy (DOE) and the UA Nuclear Regulatory Commission (NRC) is to establish the ,

framework for a pilot program to support a joint recommendation by DOE and NRC to Congress on whether NRC be given statutory authority to regulate nuchar safety at DOE nuclear facilities. The intent of this pilot program is for NRC to " simulate regulation" (as defined herein)on a series of plot facilities to help both agencies ps'a experience related to NRC regulation of DOE facilities. It will also provide an opportunity to develop actual information on the costs and benefits of extemal regulation.

fl. BACKGROUND in 1994, legislation was introduced in the House of Representatives that would have subjected riew DCE facilities to immediate extemal regulation and would have created a stakeholdergroup to study extemal regulation of existing facilities, As an altamative to that approach, Hazel O' Leary, the Secretary of Energy at that time, in January 1995 created the l

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Advisory Committee on Extemal Regulation of DOE Nuc! ear Safety (Advisory Committee).

The Advisory Committee was charged with providing advice and recommendations on whether and how new and existing DOE facilities and operations might be regulated to ensure nuclear safety, in its December 1995 report, Improving Regulation of Safet' at DOE Nuclear Facilities , j the Advisory Committee recommended that essentir" aspects of ssMy at DOE's t nuclear facilities be extemally regulated. Secretary O'lt y accepted and endorsed the l

l' Advisory Committee's report and created the DOE Working Group on Extemal Reg alation l i (Working Group) to provide recommendations on implementation of the Advisory '

! Committee's report.~ The recommendations made by the Working Group in its December l 1996 report were: (1) NRC should be the extemal nuclear safety regulator and (2) the transition to extemal regulation should be phased in.

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, Benefits of extemal regulation are expected to include improved safety while also facilitatirg  :

DOE's ongoing transition to performance-basedcontracting and a more efficient corporate style of safety and health management. In the view of the Advisory Committee, an extemal I

regulator, free of the responsibility for DOE's missions, and not answering to DOE, can I

ensure that safety receives consistent and adequate attention. Extemal regulation would also ensure more effective enforcemer.t ')y placing such authority in independent hands [

engaged.only in achievement of safety, Taken together, the move to extemal regulation is seen as the best way to ersure the safety of DOE .aclear facilities, protect the safety and health of workers across the DOE complex, and build public trust, t

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i Both the Advisory CommNtee and the Working Group concluded that the transition to NRC ,

regulation would involvs significant legal, financial, technical and procedural adjustments for both agencies.  :

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' in September 1996, the NRC published for comment a series of Direction Setting issue l (DSI) Papara underits Strategic Assessment and Rebaselininginitiative. One of the issue

. papers, DSI 2, addressed options for NRC's position on the regulation of DOE facilities, in  ;

March 19'/7,1dter considering public comments, along with the December 1996 DOE  :

decision to seek transfer of oversight to NRC, the Commission endorsed seeking the i

transfer to NRC of responsibilityfor the regulatory oversight of certain DOE nuclear facilities 4 contingent on adequr.te tWing, staffing resources, and a clear delineation of the authority NRC will exercise cr er the fsClities, in addition, the Commission directed the NRC staff to 4

convene a high-lemi NRL Task Force to identify, in conjunction with DOE, the policy and regulatory issues needing analysis and resolution.

l Therefore, both Secretary Pe6a of the Department of Energy and Chairman Jackson represorting the Nuclear Regulatory Commission have agreed to pursue NRC regulation of DOE nuclear facilities on a pilot program basis.

Ill. DEFINITION OF SIMULATED REGULATION Regulation,in contrast to simulated regulation used in this pilot program, generally means that the regulator has the statutory authonty to: (1) establish standards and requirements; ,

(2) apply the standards and requirements to particular operations, sometimes through 3

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licensing or permitting actions; (3) conduct inspections against applicable standards and ,

requirements and licensing conditions; and (4) bring enforcement actions against the f l

regulated entity for violations of the standards and requirement. Simulated regulation, as  !

defined for the purposes of this pilot program, means that NRC will test regulatory concepts i 4

3 and evaluate a facility and its standards, requirements, procedures, practices, and activities  ;

against standardsthat NRC believes would be appropriate to ensure safety in view of the nature of the work and hazards at that pilot facilityi Simulated regulation will involve- f I

interactions with DOE, DOE's contractors, and NRC. Simulated regulation will include l NRC inspections of each pilot facility to identify issues related to implementation. NRC's  ;

inspections will not result in enforcement adions to compel compliance with particular i standards or requirements. However, significant inspection findings that impact health and  ;

safety will be transmitted promptly to the appropriate DOE organization for the pilot facility i-for review and corrective actions, as appropriate.

1 IV. SCOPE This MOU establishes the overall framework for DOE and NRC cooperation in a pilot program for simulated regulation by NRC at selected DOE facilities, implementation details for each pilot facility will be negotiated by DOE, NRC and DOE contractors in Individual ,

work plans. [

- The pilot program is expected to last two years. During' these two years, between six and ten facilities will be evaluated. - At the end of the two years, DOE and NRC will determine whether to seek legislation to give NRC authonty to regulate individual or classes of DOE  !

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I nuclear facWies.

This MOU provides for cooperation in seeking to obtain the necessary budgotary and staffing resources for NRC participation in the pilot program.

In addition, this MOU provides for cooperationin involving the public and other stakeholders in the pilot program and in the DOE and NRC decision on whether to seek external regulation at the end of the pilot program.

This MOU cor~s a pilot program Mr simulated regulation of nuclear safety and radiation protection of wo*ers at the pilot facilities. It does not cover the industrial (non-nuclear) safety of workers at the pilot facilities. A parallel effort related to industrial safety of workers at some, if not all, of the plot facilities is expected between DOE and the Occupational Safety and Health Administration (OSHA).

V. OBJECTIVES The overallobjective of the activities undertaken pursuant to this MOU is to provide DOE and NRC with ar'ficient information to determine the desirability of NRC regulatory oversight of DOE nuclear facilities and to support a decision whether to seek legislation to authorize NRC regulation of DOE nuclear facilities. Specifically, DOE and NRC seek to obtain sufficient information about a set of DOE nuclear facilities to:

A. Determine the value added by NRC regulatory oversight of activities at a pilot set t'

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of DOE nuclear facilities. l b

B. Test regulatoryapproades that could be used by NRC in overseeing activities at i

a pilot set of DOE nuclear facilities.

C. Determine the status of a set of DOE pilot facilities with respect to meeting existing j NRC requirements , or acceptable altematives, and to identify any significant safety l

. Issues.

I D. Determine the costs (to DOE and NRC) related to NRC regulation of the pilot facilities and oAer DOE facilities that might be in a similar class and condition. i E. Evaluate altomative regulatory relationships between NRC, DOE, and DOE s

contractors at the pilot facilities. Identify DOE contract changes that would be needed to provide for NRC oversight of contractor operations.

F. Identify issues and potential solutions associated with a transition to NRC oversight of DOE nuclear facilities.

G. . Identifylegislative and regulatory changes necessary or appropriate to provide for ,

NRC regulatory oversight of DOE nuclear facilities.

t H. Evaluate how stakeholdersshould be involved if the NRC assumes broad extemal t

. regulatory authority over DOE nuclear facilities.

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VI.- AUTHORITY j

-t A. Department of Energy i

DOE is entering into this MOU pursuant to the Atomic Energy Act of 1954, as l amended, including but not limited to Sections 31, 33, 91 and 161(l); the Energy -  ;

Reorganization Act of 1974, including Section 104; Sections 301(a) and 641 of the ,

Department of Energy Organization Act of 1977; and, the Eco~wny Act as-amended. .

I B.' Nuclear Regulatory Commission t

NRC is entering into this MOU pursuant to the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974; and, the Economy Act of 1932, as amended. I Vll. - AGREEMENTS BETWEEN PARTIES

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i - A.~ ' Responsibilities  :

Department of Energy j

- The Assistant Secretary for Environment, Safety and Health will be responsible for the ~

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t overallimplementationof the terms of this agreement. A technical point of contact will be appointed for each individual pilot facility.

t Nuclear Regulatory Commisalon The Deputy Executive Director for Regulatory Programs will be responsible for the overall  ;

implemettation of the terms of this agreement. An NRC technical point of contact w.. M i appointed for each individual pilot facility, i

B. Coordissation Activities

1. DOE and NRC agree to enter into an Interagency Agreement to reimburse NRC, where legally permitted and not otherwise covered by appropriations,for 1% agency cost associated with NRC activities to achieve the objectives of this MOU.

2. DOE and NRC agree to each establish a Task Force to act for them in this cooperative project. These Task Forces may also evolve into or establish a joint review group to evaluate individual pilots and/or the pilot program.

3. DOE agrees to support an NRC request to the Office of Management and Rudget (OMB) to authorize an increase in NRC's personnel ceiling by the amount necessary to carry out the activities provided for by this MOU.

4. If an issue arises in the implementation of this MOU which cannot be resolved at the 8

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e staff love!, within 30 days of reaching such a conclusion, the NRC and DOE agree to refer the matter to the Assistant Secretary of Environment, Safety and Health (DOE) and the Deputy Executive Director for Regulatory Programs (NRC).

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C. - Pilot Program Description -

The pilot program will begin with three DOE pilot facilities selected by DOE and NRC. The objective is to complete between six and te Niot ft.cilities by the end of the two-year term. ,

Pilots will be staggered throughout the two-year period as mutually agreed to by DOE and NRC However, all pilots muethe completed no later than two years from the effective date of this MOU.

DOE and NRC agree to develop a detailed work plan for each pilot facility. These work plans will be prepared with extensive participation by the pilot site. The work plans will be developed to allow DOE and NRC to implement the intent and objectives of this MOU.

I As soon as sufficient information has been obtained and analyzed for each of the pilot i

facilities, DOE and NRC personnel will prepare and provide to the Secretary and the 4 Commission a report, and as appropriate briefings, on each facility that addresses the objectives in Section V of this MOU. Each report will examine the advantages and i

disadvantages of NRC regulating the pilot facility, as well as other DOE facilities in a similar class of facility.

WithinIhma months after the two year pilot program ends, DOE and NRC personnel will 9

r prepare and provide to the Secretary and the Commission a report on the advantages and disadvantages of NRC regulating DOE nuclear facilities based on the pilot program experiences. The report will include a recommendation on which DOE nuclear facilities or which classes of DOE nuclear facilities should be extemally regulated by NRC. If the Secretary and the Commission detennine that some or all DOE nuclear facilities should be regulated by NRC, DOE and NRC will prepare draft legislation giving NRC such authority.-

D, Stakeholder and Public Participation

1. Identification and assessment of the issues associated with extemal regulation are expected to require extensive coordination between DOE and NRC, other affected Federal agencies (e.g., Environmental Protection Agency, OSHA), the Defense Nuclear Facilities Safety Board, State govemments, and other interested parties.

DOE and NRC will develop a strategy to involve stakeholders, including the general public, throughout the pilot program.

2. Requests received by NRC under the Freedom of Information Act for information provided to NRC by DOE under this MOU will be referred to DOE for appropriate response.

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-- Vill. OTHER PROVISIONS A. NRC's participation in the activities described in this MOU is contingent upon receiving adequate appropriations or reimbursements from DOE of NRC's full agency cost and an appropriate personnel ceiling for those activities. Special activities beyond the scope of this MOU may be negotiated for cost reimbursement as needed.

B. For this pilot program, DOE will facilitate NRC interadions with DOE contractors to achieve the purposes of this MOU.

C. Nothing in this MOU will limit the authority of either agency to exercise independently,its authoritywith regard to matters that are the subject of this MOU, D. Nothing in this MOU alters DOE's authority to ensure the safety of any DOE nuclear facility that is part of the pilot program. NotNng in this MOU grants NRC any regulatory authority over DOE nuclear safety and radiation protec'!cn activities.

E. Nothing in this MOU establishes any right nor provides a basis for any action, either legal or squitable, by any person or class of persons challenging a govemment action or a failure to act.

F. This MOU is effective upon the date of signature by the last party. This MOU may 11

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be terminated by mutual agreement or by written notice of either party, i

Amendments or modifications to this MOU may be made upon written agreement -

- of the parties.

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