[Federal Register Volume 85, Number 119 (Friday, June 19, 2020)]
[Notices]
[Pages 37086-37089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13238]


-----------------------------------------------------------------------

DEPARTMENT OF ENERGY


DOE Response to Defense Nuclear Facilities Safety Board 
Recommendation 2020-1, Nuclear Safety Requirements

AGENCY: Office of Environment, Health, Safety and Security, Department 
of Energy.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: On February 21, 2020, the Defense Nuclear Facilities Safety 
Board issued Recommendation 2020-1, Nuclear Safety Requirements, to the 
Department of Energy. In accordance with the Atomic Energy Act of 1954, 
the Secretary of Energy's response to the Recommendation is provided in 
this notice.

DATES: Comments, data, views, or arguments concerning the Secretary's 
response are due on or before July 20, 2020.

ADDRESSES: Please send to: Defense Nuclear Facilities Safety Board, 625

[[Page 37087]]

Indiana Avenue NW, Suite 700, Washington, DC 20004.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Do, Office of the 
Departmental Representative to the Defense Nuclear Facilities Safety 
Board, Office of Environment, Health, Safety and Security, U.S. 
Department of Energy, 1000 Independence Avenue SW, Washington, DC 
20585, or telephone number (301) 903-6460, or email [email protected].

SUPPLEMENTARY INFORMATION: On February 21, 2020, the Defense Nuclear 
Facilities Safety Board issued Recommendation 2020-1, Nuclear Safety 
Requirements, to the Department of Energy. Recommendation 2020-1 was 
published in the Federal Register on March 13, 2020 (85 FR 14658). In 
accordance with section 315(c) of the Atomic Energy Act of 1954 (42 
U.S.C. 2286d(c)), the Secretary of Energy's response to the 
Recommendation is printed in full at the conclusion of this notice.

Signing Authority

    This document of the Department of Energy was signed on June 15, 
2020, by Joe Olencz, Departmental Representative to the Defense Nuclear 
Facilities Safety Board, Office of Environment, Health, Safety and 
Security, pursuant to delegated authority from the Secretary of Energy. 
That document with the original signature and date is maintained by 
DOE. For administrative purposes only, and in compliance with 
requirements of the Office of the Federal Register, the undersigned DOE 
Federal Register Liaison Officer has been authorized to sign and submit 
the document in electronic format for publication, as an official 
document of the Department of Energy. This administrative process in no 
way alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on June 16, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
June 11, 2020

The Honorable Bruce Hamilton
Defense Nuclear Facilities Safety Board
625 Indiana Avenue NW, Suite 700
Washington, DC 20004

Dear Chairman Hamilton:

    The Department of Energy (DOE) acknowledges receipt of Defense 
Nuclear Facilities Safety Board (DNFSB or Board) Recommendation 
2020-1, Nuclear Safety Requirements, dated February 21, 2020, and 
published in the Federal Register on March 13, 2020.
    The Board stated that the Recommendation is ``intended to 
strengthen DOE's regulatory framework in its current form,'' and 
consists of actions which DOE understands are intended to improve 
its existing nuclear safety regulatory framework, rather than remedy 
Board-perceived flaws in such framework. DOE stated in its December 
17, 2019, response to the Draft Recommendation 2020-1, that 
continuous improvement is a core value in maintaining a robust 
nuclear safety regulatory framework to ensure adequate protection of 
public and worker health and safety.
    DOE's recent actions to improve the framework include proposing 
to modify and improve Title 10 Code of Federal Regulations (CFR) 
Part 830, Nuclear Safety Management, and associated DOE nuclear 
safety directives and technical standards.
    These efforts underscore DOE's goal to continuously improve its 
nuclear safety regulatory framework, which has helped DOE achieve 
and maintain an outstanding record of safety performance in recent 
decades. DOE does not agree with the DNFSB's assertion that the 
revisions proposed in the August 8, 2018, Notice of Proposed 
Rulemaking for 10 CFR part 830 would erode DOE's nuclear safety 
regulatory framework. Rather, DOE believes that these proposed 
changes would improve the effectiveness and efficiency of that 
framework while continuing to ensure adequate protection of the 
public and worker health and safety across the DOE complex.
    Following DOE's evaluation of Recommendation 2020-1, the 
Department partially accepts the Board's Recommendation as 
summarized below and detailed in the enclosure.
    On June 9, 2020, DOE provided the Board staff with the draft 
Final Rule, which touches on certain sub-elements of Recommendation 
2020-1. Because the Department continues to consider these topics as 
part of its current rulemaking process, DOE rejects sub-
recommendations 2.a, 2.b, 3.a, 4.a, and 4.b.
    In addition, DOE rejects sub-recommendations 3.b, 3.c, and 4.e, 
as currently written because these topics are outside of the scope 
of the current rulemaking process to amend 10 CFR part 830. However, 
DOE will perform a regulatory analysis to evaluate whether further 
changes to 10 CFR part 830 should be proposed in an additional 
rulemaking.
    As explained further in the enclosure to this letter, DOE 
partially accepts subrecommendations 1.a, 4.c, and 4.d, and will 
develop an Implementation Plan to address these elements. We 
appreciate the Board's advice and will continue working closely with 
the Board to improve the Department's regulatory framework at DOE 
defense nuclear facilities in a manner that meets our shared 
objectives to ensure the continued safe, effective, and efficient 
execution of our mission. We look forward to working with the Board 
and its staff as we prepare the Implementation Plan.
    If you have any questions, please contact Mr. Matthew Moury, 
Associate Under Secretary for Environment, Health, Safety and 
Security, at 202-586-1285.

Sincerely,

Dan Brouillette

Enclosure

Enclosure

Enclosure--Department of Energy Response to DNFSB Recommendation 2020-
1, Nuclear Safety Requirements

    The Department of Energy (DOE or Department) has evaluated 
Defense Nuclear Facilities Safety Board (DNFSB or Board) 
Recommendation 2020-1. The following discussion presents a detailed 
response for each DNFSB sub-recommendation, which reflects the 
Department's partial acceptance of Recommendation 2020-1 
(Recommendation).
    DOE disagrees with the DNFSB's assertion that the revisions 
proposed in the August 8, 2018, Notice of Proposed Rulemaking (NOPR) 
for 10 CFR part 830, Nuclear Safety Management, would erode DOE's 
nuclear safety regulatory framework. Rather, DOE believes that these 
proposed changes would improve the effectiveness and efficiency of 
the framework while continuing to ensure adequate protection of 
public and worker health and safety at DOE defense nuclear 
facilities.
    The DNFSB's Recommendation includes specific sub-recommendations 
related to two of the proposed revision topics identified in the 
NOPR: Hazard categorization and the review and approval of safety 
documentation. Because the Department continues to consider these 
topics as part of its current rulemaking efforts, DOE rejects sub-
recommendations 2.a, 2.b, 3.a, 4.a, and 4.b.
    Following issuance of the Final Rule, DOE plans to evaluate 
affected directives and standards (primarily DOE-STD-1104-2016, 
Review and Approval of Nuclear Facility Safety Basis and Safety 
Design Basis Documents, and DOE G 424.1-1B, Implementation Guide for 
Use in Addressing Unreviewed Safety Question Requirements) for 
conformance with any new requirements and provide any necessary 
implementation guidance. There will be an opportunity for the Board 
to engage in these revisions. Further discussion regarding these two 
topics is provided below.
    In addition, DOE rejects sub-recommendations 3.b, 3.c, and 4.e 
as written because these topics are outside of the scope of the 
current rulemaking to amend 10 CFR part 830. However, DOE will 
perform a regulatory analysis to evaluate whether changes to 10 CFR 
part 830 should be pursued through an additional rulemaking.

Sub-Recommendation 1: Aging Infrastructure

    Sub-Recommendation 1.a. Develop and implement an approach 
including requirements to aging management that includes a formal 
process for identifying and performing infrastructure upgrades that 
are necessary to ensure facilities and structures, systems, and 
components can perform their safety functions.
    DOE partially accepts this sub-recommendation. DOE believes its 
nuclear safety regulatory framework has requirements in place to 
ensure facilities and safety structures, systems, and components 
(SSCs), both active and passive, perform their safety

[[Page 37088]]

function. In the Department's December 17, 2019, response to the 
Draft Recommendation, we included extensive discussion regarding 
DOE's expectations for the performance of safety SSCs within DOE's 
policy documents. At the highest level, compliance with 10 CFR part 
830, including the requirement in Sec.  830.204(b)(4) to ``. . . 
demonstrate the adequacy of these [hazard] controls to eliminate, 
limit, or mitigate identified hazards . . .'', is required for all 
Hazard Category (HC) 1, 2, and 3 nuclear facilities, and applies to 
new and aging facilities.
    In responding to this sub-recommendation, however, DOE will 
ensure that nuclear safety is appropriately considered within 
existing organizations and committees in the Department who are 
charged with establishing Department-wide priorities and providing 
recommendations regarding infrastructure.
    DOE has also been involved in the development of ANS-3.14-202x, 
Process for Aging Management and Life Extension of Nonreactor 
Nuclear Facilities, and will continue to support this effort to 
develop a consensus standard that is intended to guide the review 
and management of aging degradation mechanisms.

Sub-Recommendation 2: Hazard Categorizies

    Sub-Recommendation 2.a. Retain qualitative definitions of hazard 
categories in 10 CFR 830.
    DOE rejects this sub-recommendation because DOE is considering 
this matter in the current rulemaking. The August 8, 2018 NOPR 
proposed to remove Table 1 of Appendix A, which provides a 
qualitative concept of hazard categories, and replace that table 
with a formal definition in Sec.  830.3 for ``Hazard Category 1, 2, 
and 3 DOE nuclear facilities'' that references DOE-STD-1027-92 
Change Notice 1.
    The NOPR notes that the removal of Table 1 would allow for a 
clearer link between the HC determination and the methodology in 
DOE-STD-1027-92 Change Notice 1 (as required in 10 CFR 
830.202(b)(3)). As proposed, the qualitative ordering in which HC 1 
would have higher potential consequences and HC 3 would have lower 
potential consequences remains unchanged from the current method. 
However, the determination of hazard categorization has always 
required the use of a quantitative methodology consistent with DOE-
STD-1027-92, Change Notice 1, not on the guidance related to the 
qualitative concept provided in Table 1 of Appendix A to 10 CFR part 
830, subpart B.
    Sub-Recommendation 2.b. Revise 10 CFR 830 to mandate use of a 
single version of Standard 1027 when performing facility hazard 
categorization.
    DOE rejects this sub-recommendation because DOE is considering 
this matter in the current rulemaking. It is worth noting that DOE's 
current approach is as follows: Section 830.202(b)(3) mandates that 
each facility be categorized ``consistent with DOE-STD-1027-92 
(``Hazard Categorization and Accident Analysis Techniques for 
compliance with DOE Order 5480.23, Nuclear Safety Analysis 
Reports,'' Change Notice 1, September 1997).'' DOE has allowed 
updates to the Standard, as in DOE-STD-1027-2018, that retain the 
same methodology as in DOE-STD-1027-92. The Recommendation states 
that ``the words `consistent with' introduce flexibility in 
implementation to not actually follow the requirements in DOE-STD-
1027.'' DOE disagrees with this point. The rule requires that hazard 
categorization be conducted in a manner that is consistent with the 
methodology in DOE-STD-1027-92.
    DOE provided the Board staff with a draft Final Rule on June 9, 
2020. In the future, if DOE were to propose a new methodology for 
categorization, DOE would need to undertake a new rulemaking that 
would include the revised methodology for public comment and 
reference the new standard that includes the methodology.

Sub-Recommendation 3: DOE Approvals

    Sub-Recommendation 3.a. Conduct a root cause analysis to 
identify the underlying issues prohibiting the current safety basis 
approval process from working efficiently and use the findings to 
improve DOE's approval process.
    DOE rejects this sub-recommendation because DOE is considering 
this matter in the current rulemaking. The Recommendation identifies 
a number of concerns with the NOPR regarding the deletion of the 
requirement for review and approval of the annual updates to the 
documented safety analysis (DSA). Sub-recommendations 3.a. and 4.a. 
recommend conducting a root cause analysis to identify underlying 
issues in the DSA annual submittal and approval process.
    Prior to issuing the NOPR, DOE carefully considered the proposed 
changes. DOE is the approval authority of safety bases and can 
approve changes to safety bases outside of the annual update 
process. DOE does not believe that the proposed change to delete the 
requirement for review and approval of the annual updates 
``complicates DOE's ability to ensure the configuration of the 
facility, the processes, and the documentation'' on the safety of 
DOE facilities, as asserted in the Recommendation. The following 
discussion provides an explanation of DOE's proposal in the NOPR to 
remove this requirement, and why DOE believes this would be an 
effective path forward.
    In Sec.  830.203, Unreviewed Safety Question Process, DOE 
currently requires the contractor to obtain DOE approval prior to 
taking any action determined to involve an unreviewed safety 
question (USQ). DOE-STD-1104-2016 explains that ``[s]ince a 
``positive'' [USQD determination (USQD)] indicates a situation that 
is not within the current DOE-approved safety envelope (i.e., a 
USQ), that situation or action(s) is required to be evaluated in 
accordance with 10 CFR part 830 and approved by DOE.''
    Additionally, Sec.  830.202, Safety Basis, requires the 
contractor to annually submit to DOE either the updated DSA for 
approval or a letter stating that there have been no changes in the 
DSA since the prior submission. This effectively requires the 
contractor to submit changes to the DSA, for DOE approval, twice.
    The requirement in Sec.  830.201 that a contractor must perform 
work in accordance with the safety basis remains unchanged. The NOPR 
proposes a change to clarify that work must be performed in 
accordance with ``the DOE-approved safety basis'' for a facility. 
This has always been the expectation as described in Sec.  830.207, 
DOE approval of safety basis; however, this change is proposed in 
the NOPR to further clarify the point.
    In the NOPR, the language in Sec.  830.207(b) has also been 
proposed for revision and would be strengthened to say: ``Pending 
issuance of a safety evaluation report in which DOE approves an 
updated or amended safety basis for an existing Hazard Category 1, 
2, or 3 DOE nuclear facility, the contractor responsible for the 
facility must continue to perform work in accordance with the DOE-
approved safety basis for the facility and maintain the existing 
safety basis consistent with the requirements of this Subpart'' 
(emphasis added).
    The NOPR's proposed change to eliminate the requirement for DOE 
to approve the annual update would rely on an effectively 
implemented process for USQs. This proposed change would allow the 
USQ process to be the primary mechanism by which DOE's approval for 
changes to the DSA, where appropriate, would be obtained. If new 
changes or planned DSA updates are proposed (which have not been 
approved by DOE through the USQ process), DOE would review and 
approve those changes as required by Sec.  830.207. The NOPR 
proposes to amend 10 CFR part 830, Appendix A to Subpart B, Section 
F.3, to include revised text to clarify this process.
    Sub-Recommendation 3.b. Add language to the rule to explain that 
DOE's review of safety basis updates should consider the cumulative 
effect of changes to the safety basis.
    DOE rejects this sub-recommendation because this topic is 
outside of the scope of the current rulemaking to amend 10 CFR part 
830. However, DOE will perform a regulatory analysis to evaluate 
whether any changes to 10 CFR part 830 should be proposed through an 
additional rulemaking.
    Sub-Recommendation 3.c. Revise the body of 10 CFR 830, Subpart 
B, to include formal DOE approval of justifications for continued 
operation and evaluations of the safety of a situation.
    DOE rejects this sub-recommendation because this topic is 
outside of the scope of the current rulemaking to amend 10 CFR part 
830. However, DOE will perform a regulatory analysis to evaluate 
whether any changes to 10 CFR part 830 should be proposed through an 
additional rulemaking.

Sub-Recommendation 4: Safety Basis Process and Requirements

    Sub-Recommendation 4.a. Conduct a root cause analysis to 
identify the underlying issues prohibiting contractors from 
developing and submitting a documented safety analysis on an annual 
schedule for DOE approval and use the findings to improve the 
submission process.
    DOE rejects this sub-recommendation because DOE is considering 
this matter in the

[[Page 37089]]

current rulemaking. See discussion under sub-recommendation 3.a. for 
the basis for rejection of 4.a.
    Sub-Recommendation 4.b. While conducting the analyses in 3.a. 
and 4.a. above, retain the requirement for contractors to submit a 
documented safety analysis on an annual schedule for DOE approval.
    DOE rejects this sub-recommendation because DOE is considering 
this matter in the current rulemaking. See discussion under sub-
recommendation 3.a for the basis for rejection of 4.b.
    Sub-Recommendation 4.c. Specify what safety basis documentation 
a contractor must submit when seeking approval for an action 
involving a USQ (proposed 10 CFR 830.203(d)).
    DOE partially accepts this sub-recommendation and will evaluate 
DOE's nuclear safety management framework (i.e., DOE directives and 
technical standards) to determine whether improvements are 
necessary. DOE's understanding is that the Board staff is also in 
the process of reviewing DOE's implementation of USQ requirements 
for defense nuclear facilities. DOE looks forward to considering the 
results of this review, once complete, to inform DOE's path forward 
in this area. The Implementation Plan will further describe the 
steps that will be taken to address this sub-recommendation.
    Sub-Recommendation 4.d. Establish requirements for USQs and TSRs 
in 10 CFR 830 and/or orders, by elevating key guidance on USQs and 
TSRs to clearly identified requirements.
    DOE partially accepts this sub-recommendation and will evaluate 
DOE's nuclear safety management framework (i.e., DOE directives and 
technical standards) to determine whether improvements are 
necessary. DOE's understanding is that the Board staff is also in 
the process of reviewing DOE's implementation of USQ and technical 
safety requirements (TSR) for defense nuclear facilities. DOE looks 
forward to considering the results of these reviews, once complete, 
to inform DOE's path forward in this area. The Implementation Plan 
will further describe the steps that will be taken to address this 
sub-recommendation.
    Sub-Recommendation 4.e. Establish requirements for and 
incorporate the concept of defense-in-depth and SACs and add a 
discussion of defense-in-depth and SACs to 10 CFR 830 under safety 
structures, systems, and components.
    DOE rejects this sub-recommendation because this topic is 
outside of the scope of the current rulemaking to amend 10 CFR part 
830. However, DOE will perform a regulatory analysis to evaluate 
whether any changes to 10 CFR part 830 should be proposed through an 
additional rulemaking.

[FR Doc. 2020-13238 Filed 6-18-20; 8:45 am]
BILLING CODE 6450-01-P