[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)]
[Notices]
[Pages 12861-12864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6759]


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NUCLEAR REGULATORY COMMISSION
[Docket 70-3091]


Notice of Availability of Memorandum of Understanding Between the 
Nuclear Regulatory Commission and the Department of Energy Concerning 
the Cooperation and Support for Demonstration Phase (Phase I) of DOE 
Hanford Tank Waste Remediation System Privatization Activities

SUMMARY: On January 29, 1997, the Nuclear Regulatory Commission (NRC) 
and the Department of Energy (DOE) signed a Memorandum of Understanding 
(MOU) to provide a basis for cooperation and support during the 
demonstration phase (Phase I) of the DOE Hanford Tank Waste Remediation 
System (TWRS) Privatization Activities. The MOU establishes a 
cooperative process to support DOE in developing a regulatory program 
consistent with the NRC's regulatory approach.

FOR FURTHER INFORMATION CONTACT: Amy L. Bryce, Special Projects Branch, 
Division of Fuel Cycle Safety and Safeguards, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, (301) 415-5848.

SUPPLEMENTARY INFORMATION:

Memorandum of Understanding Between the Nuclear Regulatory Commission 
and the Department of Energy
Cooperation and Support for Demonstration Phase (Phase I) of DOE 
Hanford Tank Waste Remediation System Privatization Activities

I. Purpose

    The purpose of this Memorandum of Understanding (MOU) between the 
Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE) 
is to establish the basis for cooperation and mutual support during the 
demonstration phase (defined as Phase I) of DOE's Tank Waste 
Remediation System (TWRS) Privatization activities. An objective of 
this DOE/NRC interaction is the development and execution of a 
comprehensive regulatory program by DOE that is consistent with NRC's 
regulatory approach for protecting workers, the general public, and the 
environment. DOE's regulatory program is to be structured to facilitate 
the possible transition of regulatory responsibilities from DOE to NRC 
at the start of the full-scale operations phase (defined as Phase II). 
During Phase I, DOE is responsible for implementing the TWRS 
Privatization regulatory program. This MOU provides for cooperation and 
mutual support in an integrated effort that provides for:
    1. DOE to acquire capability to implement a program of nuclear 
safety and safeguards regulation consistent with NRC's regulatory 
approach.
    2. NRC to acquire sufficient knowledge and understanding of the 
physical and operational situation at the Hanford waste tanks and the 
processes, technology and hazards involved in Phase I activities, to 
enable NRC (a) to assist DOE in performing reviews in a manner 
consistent with NRC's regulatory approach and (b) to be prepared to 
develop an effective and efficient regulatory program for the licensing 
of DOE contractor-owned and contractor-operated facilities that will 
process waste at Hanford during Phase II.

II. Introduction

A. Background

    During 1991, the Department of Energy (DOE) established the TWRS 
Program at the Hanford Site to manage, retrieve, treat, immobilize, and 
dispose of certain radioactive waste in a safe, environmentally-sound, 
and cost-effective manner. The requirements and commitments for the 
TWRS cleanup activities are documented in the Hanford Federal 
Facilities Agreement and Consent Order, also known as the Tri-Party 
Agreement (TPA). Under the TPA, DOE, the U.S. Environmental Protection 
Agency (EPA), and the Washington State Department of Ecology have 
agreed to a timetable for cleanup of the Hanford Site.
    DOE, through the TWRS Program, is making a fundamental change in 
its contracting approach at Hanford, utilizing privately-owned 
facilities on the Hanford Site for processing waste which contains 
special nuclear material. This change in contracting approach also 
necessitates a fundamental change in DOE's approach to regulation and 
oversight.
    To accomplish the TWRS requirements, DOE plans to privatize 
treatment operations for the Hanford tank wastes. The TWRS 
Privatization is divided into two phases, a demonstration phase 
(defined as Phase I) and a full-scale operations phase (defined as 
Phase II). During both phases, DOE will purchase waste treatment 
services from a DOE contractor-owned, contractor-operated facility 
under a fixed-price type of contract; DOE will provide the feedstock to 
be processed. The DOE TWRS Privatization Contractor must finance the 
project; design the equipment and facility; apply for and receive 
required permits and licenses; construct the facility and bring it on 
line; operate the

[[Page 12862]]

facility to treat waste; and deactivate the facility.
    DOE will undertake nuclear safety and safeguards regulatory 
responsibility associated with the TWRS Privatization activities during 
Phase I. The EPA and the State of Washington have responsibility to 
regulate environmental issues and the Occupational Safety and Health 
Administration has responsibility to regulate occupational safety. 
NRC's participation during Phase I will primarily be of a cooperative 
nature for the purposes of information transfer and assisting DOE in 
the establishment of a regulatory program that is consistent with NRC's 
regulatory approach for protecting workers, the general public, and the 
environment.
    This MOU describes the relationship between NRC and DOE for 
activities conducted during Phase I only. The relationship between NRC, 
DOE, and the DOE TWRS Privatization Contractors during Phase II remains 
to be clarified by legislation and/or regulatory requirements.

B. Phase Descriptions

Phase I
    Phase I is a proof-of-concept/commercial demonstration-scale 
effort. The objectives of Phase I are to: (a) demonstrate the technical 
and business viability of using privatized facilities to treat Hanford 
tank waste;(b) define and maintain required levels of safety and 
safeguards; (c) maintain environmental protection and compliance; and 
(d) substantially reduce life-cycle costs and time required to treat 
Hanford tank waste.
Phase II
    Phase II will be the full-scale production phase, in which the 
facilities are to be configured so that all the remaining tank waste 
can be processed. The objectives of Phase II are to (a) implement the 
lessons learned from Phase I, and (b) process all tank waste into forms 
suitable for final disposal. The current DOE proposal is to have NRC 
assume full regulatory responsibility (consistent with the manner in 
which NRC regulates its licensees) for Phase II, although certain 
operational, statutory, and regulatory issues must be clarified before 
the proposed Phase II regulation by NRC can be implemented. Current 
estimates are that DOE procurement documents and NRC regulatory 
requirements for Phase II would be needed by the year 2004.
    This MOU does not apply to Phase II activities.

III. Authority

A. Department of Energy

    Sections 31, 91 and 161 of the Atomic Energy Act of 1954, as 
amended; Section 104 of the Energy Reorganization Act of 1974; and, 
Section 301 of the DOE Organization Act authorize DOE to provide for 
the safe storage, processing, transportation and disposal of hazardous 
waste, including radioactive waste, resulting from nuclear materials 
production and weapons production. In addition, with regard to 
activities under DOE's jurisdiction, Section 161.i.(3) of the Atomic 
Energy Act of 1954, as amended, permits DOE to prescribe such 
regulations or orders as it may deem necessary to govern DOE activities 
authorized by the Atomic Energy Act of 1954, as amended, including 
standards and restrictions governing the design, location, and 
operation of facilities used in the conduct of such activity, in order 
to protect health and to minimize danger to life or property.

B. Nuclear Regulatory Commission

    Sections 53, 57, 62, 63, 81, 103, 104, and 161b, of the Atomic 
Energy Act of 1954, as amended, and Section 201(f) of the Energy 
Reorganization Act of 1974 authorize NRC to license and establish by 
rule, regulation, or order, standards and instructions to govern the 
possession and use of special nuclear material, source material, or 
byproduct material to protect health or to minimize danger to life or 
property, or to promote the common defense and security. This agreement 
is entered into pursuant to these and other applicable authorities, 
including the Economy Act of 1932, as amended.

IV. Foundation Understandings

    1. This MOU applies to Phase I only.
    2. DOE will regulate the DOE TWRS Privatization Contractors during 
Phase I under the terms and conditions agreed upon by DOE and the DOE 
TWRS Privatization Contractors, and will be responsible for the 
regulatory oversight of all design, construction, operational, and 
event-response activities. NRC will have no regulatory authority over 
the DOE TWRS Privatization Contractors during Phase I.
    3. No regulatory action, process, or practice established by DOE 
during Phase I will be binding on NRC during any possible NRC 
regulatory oversight of DOE TWRS Privatization Contractors during Phase 
II.
    4. NRC's regulatory approach is based (a) on reviewing the 
applicant's systematic and integrated identification of potential 
accidents and interactions resulting from radiological and related 
process chemical and fire hazards, and (b) on ensuring adequate 
protection against those hazards which could impact on the safety of 
the worker, the general public and the protection of the environment.

V. Agreements Between Parties

A. Responsibilities

Department of Energy
    The Manager, Richland Operations Office, will be responsible for 
implementing the terms of this agreement. The TWRS Regulatory Official, 
who reports to the Manager, Richland Operations Office, will be the DOE 
point of contact for all communications relating to carrying out the 
provisions of this agreement.
Nuclear Regulatory Commission
    The Director of Nuclear Materials Safety and Safeguards (NMSS) will 
be responsible for implementing the terms of this agreement. The Chief 
of the responsible Branch within NMSS will be the NRC point of contact 
for all communications related to carrying out the provisions of this 
agreement.

B. General Provisions

    1. At the foundation of the DOE privatization approach is a 
predictability and reliability feature embedded in DOE's contracts with 
the TWRS Privatization Contractors `` namely contractual commitments 
for DOE regulatory actions within specific time periods. Essential to 
timely and orderly DOE regulatory actions is the awareness by NRC of 
these contractual commitments and the need for timely interaction 
between DOE and NRC at all levels.
    2. If an issue arises in the implementation of this MOU which 
cannot be resolved at the agency point-of-contact level, the NRC and 
DOE agree to refer the matter within 30 days to the Director, NMSS, and 
the Manager, Richland Operations Office, for appropriate action.
    3. It is the intent of both parties to conduct the TWRS Regulatory 
Program in an open, public, and professional manner. NRC and DOE 
recognize the importance of providing timely and accurate information 
to the public regarding regulatory matters that may affect the 
protection of workers, the general public, and the environment. 
Meetings between NRC and DOE staff in connection with this MOU will be 
governed by NRC policy on open meetings (59 FR48340; September 20, 
1994). NRC will participate with DOE in public meetings and other 
public

[[Page 12863]]

interactions, as appropriate. All transmittals between DOE and NRC 
regarding TWRS Privatization activities will be made publicly 
available, consistent with NRC and DOE policies and requirements, at an 
established local public document room.
    4. Each agency recognizes that it is responsible for the 
protection, control, and accounting of classified, proprietary, and 
procurement-sensitive information; Safeguards Information (SGI); and 
Unclassified Controlled Nuclear Information (UCNI).
    5. Each agency will be responsible for processing, under its 
established program(s), allegations--declarations or statements or 
assertions of impropriety or inadequacy whose validity has not been 
established-- associated with the regulated TWRS Privatization 
activities covered by this Memorandum of Understanding. Each agency 
will keep the other agency informed, as appropriate, of such 
allegations, the allegations'' status, and the allegations'' 
resolution. Each agency will assure that allegations are promptly 
referred to the agency or entity that has jurisdiction over the 
allegation.
    6. In support of the DOE TWRS Privatization activities, DOE will 
provide private office space and equipment, if needed, for NRC in the 
vicinity of the TWRS Regulatory Unit in the Richland, Washington area. 
DOE will provide the NRC with ready access to current TWRS regulatory 
information; access to key individuals in the Regulatory Unit for 
consistency discussions; access to TWRS general information, tank farm 
status and operational issues, and safety perspectives; and access to 
Hanford Site safety perspectives.

C. Regulatory Interaction Activities

1. Site Familiarization
    NRC will need to acquire knowledge of the physical and operational 
situation for the Hanford waste tanks and of the processes, 
technologies, and hazards involved in processing the tank wastes. The 
following activities will be performed to provide this familiarization: 
a. NRC will visit the Hanford Site, as necessary, to examine the 
conditions of the tank farms as they may relate to TWRS Privatization. 
As part of NRC's orientation, DOE will provide NRC information on:
     The physical conditions and operational requirements 
necessary for safe storage, retrieval, transfer, and processing of the 
tank waste,
    Evaluations of the criticality potential for TWRS Privatization 
activities,
     Radiation levels of the waste and chemical forms of the 
waste,
     Contamination levels in the areas of the planned TWRS 
Privatization facilities and tanks,
     Hydrogen generation/flammable gas situation of tanks,
     Organic complexant/nitrate oxidizer situation of tanks,
     Other possible hazards associated with the waste,
     Available or planned waste movement systems, and
     The Resource Conservation and Recovery Act (RCRA), 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), and Atomic Energy Act of 1954 for the TWRS.
    b. DOE will provide NRC access to the tank farms, tank farm records 
and documentation, and other information concerning operational 
conditions and events that NRC may desire in order to understand the 
TWRS Privatization project and associated hazards, processes, and 
conditions.
    c. Upon request by NRC, DOE will brief or hold discussions with NRC 
on issues related to the TWRS Privatization effort. The locations, 
timing, and content of these meetings will be agreed upon by the points 
of contact for each agency.
    d. NRC may occasionally conduct reviews and special audits or 
inspections at DOE's request to provide objective perspective on 
selected regulatory issues.
2. Regulatory Familiarization
    To assist the DOE in establishing the capability to regulate 
consistent with NRC concepts and principles, the NRC will provide 
detailed briefings, guidance documents, and support in developing 
important administrative and technical program elements of a regulatory 
program. NRC will provide DOE access to regulatory training provided by 
NRC to its staff on a space available basis and, with specific 
agreement, will provide DOE opportunity to observe NRC's regulatory 
activities.
3. Development of DOE TWRS Regulatory Program
    DOE guidance specific to the regulation of DOE TWRS Privatization 
Contractors will be prepared and issued by DOE. The guidance is for use 
by the DOE's TWRS Regulatory Unit in its execution of the regulatory 
reviews and resulting regulatory actions and is provided as information 
to the DOE TWRS Privatization Contractors for their preparation of 
regulatory submittals. The guidance will cover those submittals 
required of the Contractors by DOE such as the Quality Assurance (QA) 
program, essential set of safety standards and requirements (including 
the site-specific design basis), integrated safety management plan, 
safety assessment, construction authorization request, operating 
authorization request, operational reports and assessments, and 
deactivation authorization. DOE will be responsible for issuing this 
guidance in its final form.
    The following activities will be performed by NRC and DOE to 
develop the guidance:
    a. NRC will provide DOE with established and evolving NRC guidance 
and position documents as input for DOE to consider in the development 
and updating of its guidance for the DOE regulatory review. NRC will 
assist DOE in developing a DOE inspection program that will be applied 
during design, fabrication, construction (e.g. acceptable codes and 
standards for concrete, electrical, welding, etc.), installation, and 
qualification testing.
    b. DOE will develop guidance for the review of Contractor 
submittals and DOE reviews of TWRS Privatization activities. NRC will 
review and provide a basis for its comments on DOE's draft guidance to 
identify areas that may not be consistent with NRC's regulatory 
approach.
    c. NRC will participate, as appropriate, with DOE in the joint 
development of guidance, based on industry standards, e.g., ANS/ANSI, 
for issuance by DOE as guidance for the DOE TWRS Privatization Program.
4. Regulatory Program Implementation
    Specific DOE regulatory activities are planned: these include 
design basis review, QA program evaluation, standards approval, initial 
safety evaluation, construction authorization and inspection, operating 
authorization oversight, and deactivation authorization. These actions 
will begin in FY 1997 and continue throughout Phase I. The following 
activities will be performed by DOE and NRC in fulfillment of their 
respective responsibilities under this MOU:
    a. DOE will be responsible for safety (e.g. design basis) and 
safeguards reviews and determining acceptability of DOE TWRS 
Privatization Contractors' submittals against the DOE TWRS guidance. 
DOE will have final decision authority for regulatory implementation 
during Phase I and for all interactions with the DOE TWRS Privatization 
Contractors.
    b. NRC will review and provide a basis for its comments on DOE TWRS 
Privatization Contractors' submittals to identify any areas that are 
not consistent

[[Page 12864]]

with NRC's regulatory approach. These submittals will include all 
documents which address the technical and quality basis for the TWRS 
facilities and which could affect nuclear and process safety and 
safeguards in design, construction and operation.
    NRC will assist DOE in evaluating submittals and in verifying 
effective implementation of:
     Design--design basis, design verification, level of design 
detail and documentation, design specifications, calculations and 
drawings, and procurement specifications,
     Quality assurance--for design, procurement, construction, 
pre-operational testing and operation,
     Operator training and qualification,
     Human factors,
     Emergency response.

VI. Other Provisions

    1. Nothing in this MOU will limit the authority of either agency to 
independently exercise its authority with regard to matters that are 
the subject of this MOU.
    2. Nothing in this MOU will be deemed to establish any right nor 
provide a basis for any action, either legal or equitable, by any 
person or class of persons challenging a government action or a failure 
to act.
    3. This MOU will be effective upon signature and upon satisfaction 
of conditions in Section VI.4 and will remain in effect until the end 
of Phase I. This agreement may also be terminated by mutual agreement 
or by written notice of either party submitted six months in advance of 
termination. Amendments or modifications to this agreement may be made 
upon written agreement of the parties.
    4. This MOU will become effective, and remain in effect during such 
time periods when Congress authorizes, and provides appropriate funding 
(or when there is another acceptable form of reimbursement) for NRC's 
participation in this project.
    5. Activities within the scope of this MOU and within the scope of 
appropriated resources are mutually agreed to be without reimbursement 
of cost for either organization. Special activities such as described 
in Sections V.C.1.d and V.C.2 may be negotiated for cost reimbursement 
as needed.

John Wagoner, Manager, Richland Operations Office, Department of Energy
Carl Paperiello, Director, Office of Nuclear Materials Safety and 
Safeguards, U.S. Nuclear Regulatory Commission

    This Memorandum of Understanding was signed by the Manager of the 
Department of Energy's Richland Operations Office on January 15, 1997 
and the Director of the Office of Nuclear Materials Safety and 
Safeguards, U. S. Nuclear Rgulatory Commission on January 29, 1997.

    Dated at Rockvile, Maryland, this 7th day of March 1997.

    For the Nuclear Regulatory Commission.
Robert C. Pierson,
Chief, Special Projects Branch, Division of Fuel Cycle Safety and 
Safeguards, NMSS.
[FR Doc. 97-6759 Filed 3-17-97; 8:45 am]
BILLING CODE 7590-01-P