[Federal Register Volume 75, Number 229 (Tuesday, November 30, 2010)]
[Notices]
[Pages 74022-74024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30004]


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DEFENSE NUCLEAR FACILITIES SAFETY BOARD

[Recommendation 2010-1]


Safety Analysis Requirements for Defining Adequate Protection for 
the Public and the Workers

AGENCY: Defense Nuclear Facilities Safety Board.

ACTION: Notice, recommendation; correction

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SUMMARY: Pursuant to 42 U.S.C. 2286a(a)(5), the Defense Nuclear 
Facilities Safety Board has made a recommendation to the Secretary of 
Energy requesting an amendment to the Department of Energy's nuclear 
safety rule, 10 CFR part 830. An incorrect electronic file was 
submitted to the Federal Register and published on November 15, 2010 
(75 FR 69648). The corrected text of the recommendation approved by the 
Board is below. The Board is extending the public comment period to 
allow for consideration of this correction by all interested parties.

DATES: Comments, data, views, or arguments concerning the 
recommendation are due on or before December 30, 2010.

ADDRESSES: Send comments, data, views, or arguments concerning this 
recommendation to: Defense Nuclear Facilities Safety Board, 625 Indiana 
Avenue, NW., Suite 700, Washington, DC 20004-2901.

FOR FURTHER INFORMATION CONTACT: Brian Grosner or Andrew L. Thibadeau 
at the address above or telephone number (202) 694-7000.
    Correction: In the Federal Register of November 15, 2010 (75 FR 
69648), immediately following the signature block, the recommendation 
should read as follows:

    Dated: November 23, 2010.
Peter S. Winokur,
Chairman.

Recommendation 2010-1 to the Secretary of Energy

Safety Analysis Requirements for Defining Adequate Protection for 
the Public and the Workers, Pursuant to 42 U.S.C. 2286a(a)(5), 
Atomic Energy Act of 1954, As Amended

    Dated: October 29, 2010

Background

    The Department of Energy's (DOE) nuclear safety regulations were 
developed as a result of a mandate by Congress in the Price Anderson 
Act Amendments of 1988. These regulations now appear in Parts 820, 
830, and 835 of Title 10 in the Code of Federal Regulations (CFR). 
In this Recommendation, the Defense Nuclear Facilities Safety Board 
(Board) addresses recent changes in DOE's

[[Page 74023]]

``interpretation'' of certain critical provisions of Title 10 CFR 
Part 830, Nuclear Safety Management (10 CFR Part 830), provisions 
that are intended to provide adequate protection of public health 
and safety. As explained below, in the Board's view this revised 
interpretative posture weakens the safety structure the rule is 
designed to hold firmly in place.
    10 CFR Part 830 imposes a requirement that a documented safety 
analysis (DSA) is to be prepared for every DOE nuclear facility. 
This DSA, once approved by DOE, forms the regulatory basis for 
safety of the facility or operation. 10 CFR Part 830 does more, 
however: its Appendix A provides ``safe harbors'' for the 
preparation and approval of DSAs. These safe harbors are, in the 
main, references to detailed guidance issued by DOE. A DSA that is 
prepared following applicable guidance found in safe harbors should 
be found acceptable, meaning that the facility's safety systems are 
adequate to protect public health and safety from nuclear hazards.
    One of the key safe harbor guides for the preparation of DSAs is 
DOE Standard 3009-94, Preparation Guide for U.S. Department of 
Energy Nonreactor Nuclear Facility Safety Analysis Reports.\1\ First 
issued in July of 1994, this Standard was intended to provide 
guidance on meeting the requirements imposed by DOE Order 5480.23, 
Nuclear Safety Analysis Reports, a set of nuclear safety 
requirements that preceded and were supplanted by 10 CFR Part 830. 
The Standard stated that ``Technical Standards, such as this 
document, support the guides by providing additional guidance into 
how the requirements [of Orders and Rules] should be met.'' As such, 
it did not contain any nuclear safety requirements. Five years after 
its initial issuance, DOE amended Standard 3009-94 by the addition 
of Appendix A, currently entitled ``Evaluation Guideline.'' The 
guideline applies a dose criterion to the results of accident 
calculations found in DSAs. Stated broadly, the Standard mandates 
that safety class systems, structures, and components (SSCs) be 
installed if in a potential accident the unmitigated dose 
consequence calculations for a release scenario at the site boundary 
approach the Evaluation Guideline numerical value. The Evaluation 
Guideline value established in DOE-STD-3009-94 Appendix A is 25 rem 
Total Effective Dose Equivalent (TEDE). The Standard further states 
that although 25 rem is not considered an acceptable public 
exposure, it is generally accepted as a value indicative of no 
significant health effects.
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    \1\ When DOE issued Change Notice 2, the title of this Standard 
was revised to Preparation Guide for U.S. Department of Energy 
Nonreactor Nuclear Facility Documented Safety Analyses.
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    When 10 CFR Part 830 was promulgated in final form in early 
2001, the version of DOE Standard 3009-94 incorporated into Appendix 
A of the rule as a safe harbor included the Evaluation Guideline. 
This combination of the rule's requirement for an approved DSA and 
the application of the Evaluation Guideline of DOE Standard 3009-94 
formed the basis upon which adequate protection of the public health 
and safety would be gauged. Whenever dose consequence calculations 
showed that an accident scenario would result in offsite doses 
approaching 25 rem TEDE, the expectation was that safety related 
SSCs would function as designed, ensuring that public doses would 
never exceed a small fraction of the Evaluation Guideline.

Developments Since 2001

    As a safe harbor for 10 CFR Part 830, the Evaluation Guideline 
described in DOE Standard 3009-94 has been enforced and met for the 
majority of DOE's defense nuclear facilities, assuring adequate 
protection of the public, workers, and the environment. However, in 
December 2008, the National Nuclear Security Administration (NNSA) 
approved a DSA for the Plutonium Facility at Los Alamos National 
Laboratory that represented a significant departure from the 
accepted methodology, as discussed in the Board's Recommendation 
2009-2, Los Alamos National Laboratory Plutonium Facility Seismic 
Safety. The Board followed up its Recommendation with a letter to 
the Deputy Secretary of Energy on March 15, 2010, that sought to 
determine whether DOE's current interpretation of 10 CFR Part 830 
and DOE Standard 3009-94 still supports the principles of providing 
adequate protection of the public, workers, and the environment from 
the hazards of operating DOE's defense nuclear facilities. The 
Board's letter particularly expressed concern regarding the 
appearance that DOE's present interpretation is that the nuclear 
safety Evaluation Guideline established in DOE Standard 3009-94 does 
not have to be met.
    DOE's June 10, 2010, response to the Board's letter states that 
DOE's utilization and implementation of DOE Standard 3009-94 has not 
changed since issuance of 10 CFR Part 830. DOE's response observes 
that DOE Standard 3009-94 ``was not written as a prescriptive item-
by-item requirements document; rather it provides an overall 
approach and guidance for preparing a DSA.'' DOE's response states 
that the Standard describes steps that the contractor may take if 
the postulated accident consequences cannot be mitigated below the 
Evaluation Guideline. DOE's response also cites guidance for DOE 
approval authorities contained in DOE Standard 1104-2009, Review and 
Approval of Nuclear Facility Safety Basis and Safety Design Basis 
Documents, and notes that the Safety Basis Approval Authority may 
prescribe interim controls and planned improvements if the 
Evaluation Guideline is exceeded. DOE's response closes by stating 
that its managers ``are expected to carefully evaluate situations 
that fall short of expectations and only provide their approval of 
documented safety analyses when they are satisfied that operations 
can be conducted safely * * *, that options to meet DOE expectations 
have been evaluated, and that adequate commitments to achieve an 
appropriate safety posture in a timely manner have been made.''
    The lack of definitive statements in DOE's June 10, 2010, 
response illustrates the difficulties inherent in applying a 
guidance document as a safe harbor for implementing the requirements 
of a regulation. Furthermore, NNSA's approval of the DSA for the Los 
Alamos National Laboratory's Plutonium Facility in December 2008 
demonstrates that, despite DOE's stated expectations, it is not 
always true that DOE's managers will ensure safety by imposing 
conditions of approval that address inadequacies in the safety 
basis. This is illustrated to a lesser extent at the other NNSA 
facilities--described in follow-up correspondence NNSA issued to the 
Board on June 30, 2010--which have not implemented controls or 
compensatory measures sufficient to reduce accident consequences 
below the Evaluation Guideline. DOE Standard 1104-2009 serves as a 
source of guidance for DOE Safety Basis Approval Authorities, but 
it, too, is a guidance document, unequivocally stating, ``This 
Standard does not add any new requirements for DOE or its 
contractors.''
    DOE's standards-based regulatory system needs a clear and 
unambiguous set of nuclear safety requirements to ensure that 
adequate protection of the public, workers, and the environment is 
provided. Further, it is imperative that DOE provide clear direction 
to its Safety Basis Approval Authorities to ensure that, if nuclear 
safety requirements cannot be met prior to approval of a DSA, DOE 
imposes clear conditions of approval for compensatory measures for 
the short term and facility modifications for the longer term to 
achieve the required safety posture. This acceptance of risk and 
commitment to future upgrades must be approved at a level of 
authority within DOE that is high enough to control both the 
resources needed to accomplish the upgrades as well as the 
programmatic decision-making involved in determining that the risk 
of continuing operations is offset by sufficiently compelling 
programmatic needs.
    Item 4 of the Recommendation below deserves a further word of 
explanation. The Board does not recommend lightly a change to DOE's 
nuclear safety regulations. But as explained above, DOE has chosen 
over the past several years to drift away from the principles that 
underlay the rule as originally intended. The Board has chosen to 
recommend a rule change because this action would tend, in the long 
run, to prevent future shifts in DOE safety policy that would once 
again have to be challenged and argued against. For these reasons, 
the Board recommends that the nuclear safety rule, 10 CFR Part 830, 
be amended as stated below.

Recommendation

    Therefore, the Board recommends that DOE:
    1. Immediately affirm the requirement that unmitigated, 
bounding-type accident scenarios will be used at DOE's defense 
nuclear facilities to estimate dose consequences at the site 
boundary, and that a sufficient combination of SSCs must be 
designated safety class to prevent exposures at the site boundary 
from approaching 25 rem TEDE.
    2. For those defense nuclear facilities that have not 
implemented compensatory measures sufficient to reduce exposures at 
the site boundary below 25 rem TEDE, direct

[[Page 74024]]

the responsible program secretarial officer to develop a formal plan 
to meet this requirement within a reasonable timeframe.
    3. Revise DOE Standard 3009-94 to identify clearly and 
unambiguously the requirements that must be met to demonstrate that 
an adequate level of protection for the public and workers is 
provided through a DSA. This should be accomplished, at a minimum, 
by:
    a. Clearly defining methodologies and providing acceptability 
criteria for controls, parameters, processes, analytical tools, and 
other data that should be used in preparation of a DSA,
    b. Delineating the criteria to be met for identification and 
analyses of an adequate set of Design Basis Accidents (for new 
facilities), or Evaluation Basis Accidents (for existing 
facilities),
    c. Providing criteria that must be met by the safety-class SSCs 
to (i) mitigate the consequences to a fraction of the Evaluation 
Guideline, or (ii) prevent the events by demonstrating an acceptable 
reliability for the preventive features, and
    d. Establishing a process and path forward to meeting (a) 
through (c) above through compensatory measures and planned 
improvements if the DSA cannot demonstrate compliance.
    4. Amend 10 CFR Part 830 by incorporating the revised version of 
DOE Standard 3009-94 into the text as a requirement, instead of as a 
safe harbor cited in Table 2.
    5. Formally establish the minimum criteria and requirements that 
govern federal approval of a DSA, by revision to DOE Standard 1104-
2009 and other appropriate documents. The criteria and requirements 
should include:
    a. The authorities that can be delegated, the required training 
and qualification of the approval authority, and the boundaries and 
limitations of the approval authority's responsibilities,
    b. Actions to be taken if conditions are beyond the delegated 
approval authority's specified boundaries or limitations,
    c. The organization or the individual who can approve a DSA that 
is beyond the delegated approval authority's specified boundaries or 
limitations,
    d. The regulatory process that must be followed if conditions 
are beyond the delegated approval authority's specified boundaries 
or limitations, and any compensatory actions to be taken, and
    e. The criteria an approval authority must use to quantify the 
acceptance of risk for continued operations when offsite dose 
consequences approach the Evaluation Guideline.
    6. Formally designate the responsible organization and identify 
the processes for performing oversight to ensure that the 
responsibilities identified in Item 5 above are fully implemented.

Peter S. Winokur, Ph.D., Chairman

[FR Doc. 2010-30004 Filed 11-29-10; 8:45 am]
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