[Federal Register Volume 86, Number 221 (Friday, November 19, 2021)]
[Notices]
[Pages 64918-64921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25269]


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DEPARTMENT OF ENERGY


Department of Energy Final Decision and Reasoning 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.

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SUMMARY: On June 1, 2021, the Defense Nuclear Facilities Safety Board 
issued the reaffirmation and revision of Recommendation 2020-1, Nuclear 
Safety Requirements, to the Department of Energy. In accordance with 
the Atomic Energy Act of 1954 the following represents the Secretary of 
Energy's final decision and the reasoning for such decision on the 
recommendation.

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 June 1, 2021, the Defense Nuclear 
Facilities Safety Board issued the reaffirmation and revision of 
Recommendation 2020-1, Nuclear Safety Requirements, to the Department 
of Energy. In accordance with section 315 of the Atomic Energy Act of 
1954 (42 U.S.C. 2286d(e)), the Secretary of Energy's final decision and 
the reasoning for such decision pertaining to Recommendation 2020-1 are 
printed in full at the conclusion of this notice.

Signing Authority

    This document of the Department of Energy was signed on November 
15, 2021, by Joe Olencz, Departmental

[[Page 64919]]

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 November 16, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    Summary: This notice, together with its attachments, memorializes 
the Secretary of Energy's final decision and reasoning for such 
decision pertaining to Defense Nuclear Facilities Safety Board (DNFSB 
or Board) Recommendation 2020-1, Nuclear Safety Requirements.
    Discussion: The Board issued Recommendation 2020-1 on February 21, 
2020. The Recommendation was published in the Federal Register on March 
13, 2020 (85 FR 14658). The Secretary of Energy responded to the DNFSB 
in the letter dated June 11, 2020, indicating that the Department of 
Energy (DOE) partially accepted Recommendation 2020-1. DOE's response 
was published in the Federal Register on June 19, 2020 (85 FR 37086).
    In response to DOE's partial acceptance, the DNFSB revised and 
reaffirmed Recommendation 2020-1 on June 1, 2021. In this revision and 
reaffirmation, the Board acknowledged DOE's completion of the 
rulemaking for 10 Code of Federal Regulations (CFR) Part 830, Nuclear 
Safety Management, and made a number of revisions to specific sub-
recommendations within Recommendation 2020-1.
    In a letter to the DNFSB dated September 8, 2021, the Secretary of 
Energy accepted Recommendation 2020-1, and provided details of the 
reasoning for this acceptance. This response constitutes the 
Secretary's final decision for the Recommendation. The Secretary of 
Energy's final decision and reasoning are included as attachments to 
this notice.
    This notice is in accordance with 42 United States Code (U.S.C.) 
Section 2286d paragraph (e), which states:

    If the Secretary of Energy, in a response under subsection 
(c)(1), rejects (in whole or part) any recommendation made by the 
Board under section 2286a of this title, the Board shall either 
reaffirm its original recommendation or make a revised 
recommendation and shall notify the Secretary of its action. Within 
30 days after receiving the notice of the Board's action under this 
subsection, the Secretary shall consider the Board's action and make 
a final decision on whether to implement all or part of the Board's 
recommendations. Subject to subsection (i), the Secretary shall 
publish the final decision and the reasoning for such decision in 
the Federal Register and shall transmit to the Committees on Armed 
Services, Appropriations, and Energy and Commerce of the House of 
Representatives and the Committees on Armed Services, 
Appropriations, and Energy and Natural Resources of the Senate a 
written report containing that decision and reasoning.

Attachment 1

September 8, 2021

The Honorable Joyce Connery
Chair, Defense Nuclear Facilities Safety Board
625 Indiana NW, Suite 700
Washington, DC 20004

Dear Chair Connery:

    The Department of Energy (DOE) acknowledges receipt of your letter 
dated June 1, 2021, which both reaffirms and revises Defense Nuclear 
Facilities Safety Board (DNFSB) Recommendation 2020-1, Nuclear Safety 
Requirements. The initial issuance of Recommendation 2020-1, dated 
February 21, 2020, asserted that DOE's August 2018 proposed revisions 
to Title 10 Code of Federal Regulations (CFR) Part 830, Nuclear Safety 
Management, would erode DOE's nuclear safety regulatory framework. In 
its June 11, 2020, response which states that ``the changes to 10 CFR 
part 830 will improve the effectiveness and efficiency of DOE's nuclear 
safety framework while continuing to ensure adequate protection of 
public and worker health and safety across the DOE complex,'' DOE 
disagreed with the DNFSB's assertions. On October 19, 2020, DOE 
published the Final Rule amending 10 CFR part 830, addressing and 
incorporating comments from the DNFSB and members of the public as part 
of the formal rulemaking process. (85 FR 66201).
    Following our recent evaluation of your updated Recommendation 
2020-1, the Department continues to conclude that its current 
regulatory framework, as revised by the October 2020 rulemaking, 
provides adequate protection of public and worker health and safety 
across the DOE complex. However, I accept Recommendation 2020-1, as 
detailed in the enclosure, which constitutes my Final Decision for this 
Recommendation. DOE agrees with addressing the technical concerns 
raised by the Board, but DOE cannot commit to a specific outcome in a 
future rulemaking and will perform a regulatory analysis to evaluate 
whether any changes to 10 CFR part 830 should be proposed through a 
future rulemaking process.
    The enclosure updates DOE's June 11, 2020, response for several 
sub-recommendations to reflect revisions to Recommendation 2020-1. We 
believe DOE's implementation plan will meet the safety improvement 
objectives of the DNFSB's Recommendation.
    DOE appreciates the Board's advice and will continue working 
closely with the Board and its staff to continuously improve DOE's 
nuclear safety regulatory framework in a manner that meets our shared 
objective to ensure the continued safe, effective, and efficient 
execution of DOE's mission.
    To ensure that our implementation plan will meet the underlying 
safety improvement objectives of the DNFSB's Recommendation, DOE will 
engage in frequent staff level interactions during the preparation of 
the plan. The Board cited these constructive interactions during the 
most recent preparation of an implementation plan as a potential best 
practice, and we look forward to enhancing and improving our 
interactions during this process as well.
    If you have any questions, please contact Mr. Matthew Moury, 
Associate Under Secretary for Environment, Health, Safety and Security, 
at 202-586-1285.

Sincerely,

Jennifer Granholm

Enclosure

Attachment 2

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

    The Department of Energy (DOE or Department) has evaluated the 
reaffirmed and revised Defense Nuclear Facilities Safety Board (DNFSB 
or Board) Recommendation 2020-1, dated June 1, 2021. The following 
discussion presents a detailed response for each DNFSB sub-
recommendation, which reflects the Department's acceptance of 
Recommendation 2020-1, and constitutes the Secretary's Final Decision 
for this Recommendation.
    As described in DOE's June 11, 2020, initial response to 
Recommendation 2020-1, DOE disagreed with the DNFSB's assertion that 
the revisions proposed in the August 8, 2018, Notice

[[Page 64920]]

of Proposed Rulemaking (NOPR) for 10 CFR part 830, Nuclear Safety 
Management, will erode DOE's nuclear safety regulatory framework. 
Rather, DOE believes that these proposed changes will improve the 
effectiveness and efficiency of the framework while continuing to 
ensure adequate protection of environment, public, and worker health 
and safety at DOE defense nuclear facilities. On October 19, 2020, DOE 
published the Final Rule amending 10 CFR part 830, addressing and 
incorporating comments from the DNFSB and members of the public as part 
of the formal rulemaking process. (85 FR 66201).
    The DNFSB's June 1, 2021, letter both revises and reaffirms DNFSB 
Recommendation 2020-1, Nuclear Safety Requirements, in response to 
DOE's June 11, 2020, response and to DOE's completion of the 
rulemaking. Given the revisions made to the Recommendation, the 
following reflects DOE's revised response.
    While accepting Recommendation 2020-1, DOE accepts sub-
recommendations 3.c, 5.d, and 5.e with the understanding that DOE 
cannot commit to a specific outcome in a future rulemaking as doing so 
would be inconsistent with its requirements under the Administrative 
Procedure Act. DOE will perform a regulatory analysis to evaluate 
whether changes to 10 CFR part 830 should be pursued through a future 
rulemaking effort.

Sub-Recommendation 1: Aging Infrastructure

    Sub-Recommendation 1.a. Develop and implement an integrated 
approach--including requirements--for the management of aging 
infrastructure that includes formal processes to identify and perform 
infrastructure upgrades necessary to ensure facilities and structures, 
systems, and components can perform their safety functions.
    DOE 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 functions. In the Department's 
December 17, 2019, response to the Draft Recommendation, the Department 
included an 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 10 CFR 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 existing facilities.
    DOE will benchmark existing successful aging management processes, 
such as the Extended Life Program at Y-12, and infrastructure upgrade 
programming systems, such as Science-based Infrastructure Stewardship, 
to enhance its processes to identify, prioritize, and plan safety-
related infrastructure upgrades at Defense Nuclear Facilities. DOE will 
ensure funding necessary to complete upgrades designated through these 
evaluation and prioritization processes is clearly identified as part 
of the federal budgeting process. Given the multiple government-wide 
priorities that are considered as part of the budgeting process, DOE 
recognizes that not all upgrades are likely to be able to be funded in 
any given budgeting cycle. DOE will continue its risk-based budgeting 
prioritization approach and will continue taking other mitigating 
steps, as appropriate, to continue to maintain adequate safety. The 
Implementation Plan will further describe the steps that will be taken 
to address this sub-recommendation.

Sub-Recommendation 2: Hazard Categories

    Sub-Recommendation 2.a. Revise DOE Standard 1027-2018 to address 
the deficiencies noted in the Board's letter dated January 19, 2021.
    DOE accepts this sub-recommendation. During the DNFSB staff's 
recent 2020 review of the content and technical basis of DOE Standard 
1027-2018, Change Notice 1, Hazard Categorization of DOE Nuclear 
Facilities, DOE and the DNFSB staff had multiple meetings to discuss 
the DNFSB staff's questions and concerns. The DNFSB staff's outstanding 
issues were identified in the Board's letter dated January 19, 2021. 
The letter was provided to DOE for information. DOE has reviewed this 
letter and will work with the Board staff to further understand these 
concerns as part of future work on DOE Standard 1027 (as described in 
response to sub-Recommendation 2.b, below). Further, it should be noted 
that as a result of the Board's review of hazard categorization, NNSA 
Supplemental Directive (SD) Guide (G)-1027, Admin Change 2, was issued 
on May 10, 2021, that clarified the use of the calculated threshold 
quantities and provided additional historical perspective on use of 
International Commission for Radiation Protection (ICRP) guidance. DOE 
believes that the changes address some of the Board's concerns 
identified in the letter.
    Sub-Recommendation 2.b. Mandate use of the updated version of DOE 
Standard 1027 when performing facility hazard categorization of new 
defense nuclear facilities.
    DOE accepts this sub-recommendation. DOE plans future work on DOE 
Standard 1027, including an evaluation of DOE-STD-1027-2018, a 
potential revision of the Standard, and a potential revision to 10 CFR 
part 830 to incorporate Standard(s) used by the Department for hazard 
categorization. This work will inform any requirements to be considered 
for the future. As part of this effort DOE will perform a regulatory 
analysis to evaluate potential changes to the Rule.
    DOE's current approach is consistent with 10 CFR part 830, which 
allows updates to DOE-STD-1027, such as in DOE-STD-1027-2018, that are 
consistent with the methodology of DOE-STD-1027-92, Change Notice 1. In 
DOE's June 11, 2020 response, we noted that if DOE were to propose a 
new methodology for categorization, DOE would need to undertake a new 
rulemaking effort that would include proposing the revised methodology 
for public comment and reference the new Standard that includes the 
methodology. This remains the case. The Implementation Plan will 
further describe the steps that will be taken to address this sub-
recommendation.
    Sub-Recommendation 2.c. Review existing hazard category 3 and below 
hazard category 3 defense nuclear facilities to confirm they are 
appropriately categorized.
    DOE accepts this sub-recommendation. The DNFSB's review does not 
provide sufficient data, nor has DOE's oversight indicated that use of 
the hazard categorization standards has led to under categorization 
that would necessitate additional reviews. However, concurrent with 
DOE's resolution to sub-Recommendation 2.b, DOE will evaluate the 
nuclear safety management framework (i.e., DOE directives and technical 
standards) to determine the best approach to establish requirements 
that would provide greater confidence that defense nuclear facilities, 
including below hazard category 3 facilities, are appropriately 
categorized. The Implementation Plan will identify the specific steps 
that will be taken to address this sub-recommendation.

[[Page 64921]]

Sub-Recommendation 3: DOE Approvals

    Sub-Recommendation 3.a. Establish requirements in DOE Standard 1104 
for timely periodic DOE reviews of facility safety bases to ensure they 
meet the requirements of 10 CFR 830.
    DOE accepts this sub-recommendation. DOE commits to evaluating DOE 
Standard 1104 or other DOE directive(s) and revising directives and 
technical standards, as necessary, to incorporate DOE's expectations 
for the review of facility safety bases to ensure they meet the 
requirements of 10 CFR part 830. The Implementation Plan will further 
describe the steps that will be taken to address this sub-
recommendation.
    Sub-Recommendation 3.b. Establish clear requirements in DOE 
Standard 1104 for DOE approval of JCOs and ESSs for PISAs that result 
in a positive USQ determination.
    DOE accepts this sub-recommendation. The Implementation Plan will 
further describe the steps that will be taken to address this sub-
recommendation.
    Sub-Recommendation 3.c. Update 10 CFR 830 to incorporate the 
requirements established per items 3.a and 3.b.
    DOE accepts this sub-recommendation with the understanding that 
while the Department has accepted sub-recommendations 3.a and 3.b, any 
future resulting requirements can be implemented in several policy 
documents (i.e., DOE rules, directives, or technical standards) and DOE 
cannot commit to a specific outcome in a future rulemaking. However, 
DOE will perform a regulatory analysis to evaluate whether any changes 
to 10 CFR part 830 should be proposed through a future rulemaking 
process.

Sub-Recommendation 4: Evaluation of DSA Preparation and Review 
Processes

    Sub-Recommendation 4.a. Conduct an independent review of contractor 
and federal processes to identify and evaluate the underlying issues 
that prevented the annual submittal and approval of high-quality safety 
basis documents, and use the findings to improve the relevant 
processes.
    DOE accepts this sub-Recommendation. This sub-Recommendation is 
related to the Board's concerns with the deletion of the requirement 
for review and approval of the annual updates to the DSA in the recent 
10 CFR part 830 Rulemaking (final Rule published October 19, 2020, 85 
FR 66201). DOE's acceptance of this sub-Recommendation does not 
constitute its agreement that there is a safety concern associated with 
the October 19, 2020, final Rule, nor that there were underlying safety 
issues with the annual submittal and approval of high-quality safety 
basis documents. However, DOE is committed to continuous improvement 
and will conduct an independent review of the current safety basis 
development processes to determine whether improvements may be made for 
future submittals.

Sub-Recommendation 5: Safety Basis Process and Requirements

    Sub-Recommendation 5.a. Establish clear requirements for USQs and 
JCOs in an order or invoked standard, including elevation of key 
concepts and guidance from DOE Guide 424.1-1. While developing these 
requirements, address issues discussed in the Board's letter dated July 
10, 2020.
    DOE accepts this sub-recommendation. DOE will evaluate the nuclear 
safety management framework (i.e., DOE directives and technical 
standards) to determine the best approach to establish requirements for 
USQs and JCOs. The Board's July 10, 2020, letter will be considered as 
part of this effort. The Implementation Plan will further describe the 
steps that will be taken to address this sub-recommendation.
    Sub-Recommendation 5.b. Establish clear requirements for TSRs in an 
order or invoked standard, including elevation of key concepts and 
guidance from DOE Guide 423.1-1. While developing these requirements, 
address issues discussed in DNFSB Technical Report 45, Violations of 
the Nuclear Safety Basis.
    DOE accepts this sub-recommendation. DOE will evaluate the nuclear 
safety management framework (i.e., DOE directives and technical 
standards) to determine the best approach to establish requirements for 
Technical Safety Requirements. The Board's Technical Report 45 will be 
considered as part of this effort. The Implementation Plan will further 
describe the steps that will be taken to address this sub-
recommendation.
    Sub-Recommendation 5.c. Establish requirements for SACs by invoking 
DOE Standard 1186 in an appropriate DOE order.
    DOE accepts this sub-recommendation. DOE will evaluate the nuclear 
safety management framework (i.e., DOE directives and technical 
standards) to determine the best approach to establish requirements for 
Specific Administrative Controls. The Implementation Plan will further 
describe the steps that will be taken to address this sub-
recommendation.
    Sub-Recommendation 5.d. Update 10 CFR 830 to incorporate the 
requirements established per items 5.a through 5.c.
    DOE accepts this sub-recommendation with the understanding that 
while the Department has accepted sub-recommendations 5.a through 5.c, 
any future resulting requirements can be implemented in several policy 
documents (i.e., DOE rules, directives, or technical standards) and DOE 
cannot commit to a specific outcome in a future rulemaking effort. 
However, DOE will perform a regulatory analysis to evaluate whether any 
changes to 10 CFR part 830 should be proposed through an additional 
rulemaking process.
    Sub-Recommendation 5.e. Establish requirements in 10 CFR 830 
regarding the concept of defense-in-depth.
    DOE accepts this sub-recommendation with the understanding that 
while the Department agrees to evaluate the need for additional 
requirements regarding the concept of defense-in-depth, DOE cannot 
commit to a specific outcome in a future rulemaking process. However, 
DOE will perform a regulatory analysis to evaluate whether any changes 
to 10 CFR part 830 should be proposed through an additional rulemaking 
process.

[FR Doc. 2021-25269 Filed 11-18-21; 8:45 am]
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