Beverly K. Stephens
Office of Environment, Safety and Health
Department of Energy
Washington, DC 20585

Joseph A. Coleman
Office of Waste Management
Department of Energy
Washington, DC 20585

Serious attention to external regulation of nuclear safety at the Department of Energy (DOE) facilities began in the Congress in 1994 with hearings by the House Subcommittee on Energy and Mineral Resources. Subsequently, the Secretary of Energy convened the Advisory Committee on External Regulation of Department of Energy Nuclear Safety in 1995, followed by the DOE Working Group on External Regulation. The Nuclear Regulatory Commission evaluated several options for regulatory oversight of DOE in 1996. These assessments have resulted in a number of recommendations for proceeding with external regulation and a variety of key issues, some which will be addressed during DOE's current initiative, the Pilot Program on External Regulation. The history of the Department's efforts to answer the external regulation question, the key issues to be considered in the process, the benefits of external regulation, and the status of the pilot program on external regulation are summarized.

Prior to the 1970's, the primary mission of the Department of Energy and its predecessor organizations was the development of nuclear weapons and nuclear power. In the Manhattan Project¹ which resulted in the development of nuclear weapons, safety and health were of primary concern whereas environmental and waste management concerns were of secondary importance. Environment and waste management issues were considered long-term problems that could be handled with interim measures until better solutions could be developed.

The Atomic Energy Act of 1946 (AEA)² required the Atomic Energy Commission (AEC) to consider nuclear safety, but did not provide the details of how to meet this goal. Under the Act DOE's nuclear research and production activities were to be essentially exempt from external regulation. In 1947 the AEC established the Safety and Industrial Health Advisory Board which called for significant upgrades to environment, safety and health efforts. Of particular concern to the Board was the AEC's approach to waste management and the back-end of the nuclear fuel cycle. These areas eventually became a major concern with the advent of civilian nuclear power in the late 1950's and with the prospect of billions of gallons of high-level radioactive waste from civilian power reactors by the year 2000.

In the mid-1970's, the AEC regulatory component became the Nuclear Regulatory Commission (NRC). The rest of the agency became part of the Energy Research and Development Administration in 1975, and the Department of Energy in 1977.³ Except for certain future demonstration reactors and high-level waste repositories, DOE continued to be self-regulated.

With the enactment of major environmental legislation in the 1970's and 1980's, population growth near major DOE sites, and growing public concerns about the safety of DOE nuclear activities, DOE gradually became subject to increasing environmental regulation and oversight. Nuclear safety at DOE facilities, however, remained the responsibility of DOE.

In mid-1993, the Secretary of Energy raised the issue of NRC oversight of DOE nuclear facilities in testimony before the House Energy and Commerce Committee. The Secretary pointed out a number of significant issues of concern with external regulation which were examined in detail by subsequent studies of the proposal.

In the following year, legislation was introduced in Congress that proposed external regulation of DOE nuclear facilities. In testimony on the proposed legislation DOE recommended that this proposal required a thorough assessment of whether and how DOE might be externally regulated before proceeding further. The argument was that the DOE complex includes some 34 separate sites containing about 3500 nuclear facilities located in 13 host states. Many of these facilities are unique and therefore, would require special regulatory consideration. This recommendation was accepted and prompted several examinations of the issue, resulting in a number of recommendations and a variety of concerns that should be addressed during a transition to external regulation of DOE nuclear facilities and operations. The first examination was conducted by the Advisory Committee on External Regulation of Department of Energy Nuclear Safety.

In January 1995, an Advisory Committee made up of representatives from the public, Federal, State, Tribal, industrial and academic sectors was created to provide the Secretary of Energy with advice on external regulation. Specifically, this committee was chartered to recommend whether, and how DOE nuclear facilities should be externally regulated.

After conducting eight 2-day public meetings, hearing the viewpoints of a wide range of interested parties, and analyzing a multitude of issues, the Advisory Committee made three key recommendations:

• Essentially all aspects of safety at DOE's nuclear facilities and sites should be externally regulated;
• Existing agencies rather than a new one should be responsible for external regulation;
• Under any regulatory scheme, DOE must maintain a strong internal safety management system.⁴

These recommendations were based on the following considerations by the Committee:

• DOE should be externally regulated for the same reasons industry and all other Federal facilities and sites are;
• Credibility is critical to the success of both safety regulation and DOE's missions;
• Regulation of safety must both be effective and promote efficiency.⁴

The Committee developed a set of criteria that they believed should form the basis for regulation of safety at the Department's facilities. The set included safety, credibility, stability, accountability, efficiency, focus, flexibility, and practicality. In recommending the framework for external regulation, the Committee recommended an existing agency, either NRC or a restructured Defense Nuclear Facility Safety Board (DNFSB), should regulate facility safety at DOE and that occupational safety and environmental protection be regulated by the respective Federal or authorized State agencies. A number of additional recommendations were made on significant issues, such as transition to external regulation, and the content of proposed legislation. The Committee report was submitted to DOE in December 1995. The Secretary of Energy thereupon established the DOE Working Group on External Regulation in January 1996.

The Advisory Committee had recommended that an existing agency should regulate facility safety at all DOE nuclear facilities, but did not recommend who that agency should be. Therefore, one of the main tasks of the Working Group was to make a recommendation regarding the selection of the external regulator. The Group was also asked to develop recommendations on an approach to the transition to external regulation , the form of internal safety management after transition, and resource implications. The deliberations of the Group took about seven months and during that time the opinions of members of the Advisory Committee and representatives from NRC, DNFSB, the Occupational Safety and Health Administration (OSHA), members of Congress and other stakeholders were obtained.

The Working Group developed options regarding who should be the regulator and what facilities should be regulated. In coming up with the final two options, the Working Group took into consideration the criteria developed by the Advisory Committee, as well as the cost implications. Under option one, the DNFSB's current oversight of Defense Programs (DP) and Environmental Management (EM) nuclear facilities would be expanded while NRC would be given regulatory authority over selected DP and EM nuclear facilities and all Nuclear Energy (NE) and Energy Research (ER) nuclear facilities.

The second option can be described as a three-phase approach spanning ten years. During these three phases, the DNFSB oversight authority would gradually decrease giving way to regulation by NRC. After ten years, the DNFSB would merge into the NRC and NRC would regulate all DOE nuclear facilities.

During working group discussions, twenty-five issues were explored, including a number of issues that had been identified by the Advisory Committee. Several of the more significant issues included appropriate regulatory models, gaps in the AEA regulatory authority and the role of States, citizen participation and citizen suits against an external regulator, availability of resources, impact on DOE contractors, and national security considerations.⁵

The proposed transition plan anticipated that the development, coordination, Congressional hearings, and final legislative changes would take about 2 years. Under either option noted above, the Working Group anticipated that full implementation to complete external regulation would take about 10 years.

The Working Group reported to the Secretary of Energy in December 1996.

In December 1996, the Secretary announced that the DOE would submit legislation to transfer oversight of nuclear safety to the NRC. ⁶ The transfer would be phased in over the ten-year period recommended by the DOE Working Group. Within five years of transition, all Nuclear Energy and Energy Research facilities would be transferred to external regulation by NRC or the States. All Environmental Management nuclear facilities would be regulated by NRC before the end of ten years, and Defense Programs facilities would change to regulation by NRC at the end of ten years. Until regulation of DOE by NRC is consummated, DOE nuclear facilities would continue to be regulated by DOE with oversight by the DNFSB.

Providing the NRC with additional authority over the DOE nuclear facilities has been a topic of consideration for several years. With the Advisory Committee focussing on external regulation of DOE in 1995, the NRC addressed this issue as part of its Strategic Assessment and Rebaselining Initiative begun in August 1995. The question was, "Should the NRC seek to expand its regulatory authority and responsibilities to include DOE facilities?" Specific issues to be considered included the magnitude of the potential workload on NRC, the types of DOE facilities and operations, the current statutory authority and regulatory approaches available to NRC, overlap of regulatory authority with other Federal agencies, NRC resource requirements, and the mechanism for recovery of NRC costs of its oversight of DOE nuclear facilities and operations.

Several options were developed in response to the question of DOE oversight. In September 1996 the NRC issued its Direction Setting Issue Paper which contained a lengthy discussion of the detailed issues facing NRC.⁷ Although NRC initially decided to take no position on broad NRC responsibility for DOE facilities, the Commission announced its endorsement of NRC taking responsibility for the regulatory oversight of certain DOE nuclear facilities as recently proposed by DOE, contingent on several conditions such as adequate resources and extent of authority.⁸

Public comments on the NRC issue paper included the following perceived benefits to NRC's regulatory oversight of DOE: enhanced safety and stability with a single set of standards and requirements; a safety culture being developed within DOE that is comparable to the commercial industry; the elimination of the conflict of self-regulation. The NRC recognized that there are significant legal, procedural and technical issues which must be identified, considered and resolved prior to accepting oversight responsibility for any DOE facility. The Commission also directed the establishment of a high-level task force to work with DOE on policy and regulatory issues.

Instead of proceeding with legislation to give NRC authority to regulate DOE nuclear facilities, the Secretary of Energy and the Chairman of the NRC agreed that the next step should be a pilot program. The overall purpose of the pilot program is to gather real information which can be used to make a decision regarding whether NRC should be given authority to regulate DOE nuclear facilities. In November 1997, DOE and NRC executed a memorandum of understanding which documents the process for implementing the pilot program.⁹ Under this program, NRC will simulate regulation of six to ten DOE facilities.

Through the pilot program, DOE and NRC seek sufficient information on DOE nuclear facilities to meet the following objectives:

• Determine the value added by NRC regulatory over sight;
• Test regulatory approaches;
• Determine the status of a set of DOE pilot facilities with respect to meeting existing NRC requirements or alternatives;
• Determine the costs of NRC regulation of the pilot facilities;
• Evaluate alternative relationships between DOE, NRC and DOE contractors;
• Identify issues and potential solutions associated with a transition to NRC oversight;
• Identify legislative and necessary regulatory changes;
• Evaluate how stakeholders should be involved.

Separate reports addressing the objectives listed above are planned.

Following the end of the pilot program, experience gained from the individual pilots, as well as lessons learned from ongoing DOE/NRC initiatives, will be used to draft a final pilot program report. This report will provide the advantages and disadvantages of NRC regulating DOE nuclear facilities and provide a recommendation on which DOE nuclear facilities should be externally regulated. If it is recommended that NRC should regulate some or all DOE nuclear facilities and the Secretary of Energy and the Commission agree, DOE and NRC will draft legislation giving NRC such authority.

The Congress has recognized the movement to external regulation of DOE in their conference report on 1998 appropriations for energy and water development.¹⁰ The conference agreement directs that all new nuclear facilities for which construction starts in the year 2000 or beyond are to be constructed in accordance with Nuclear Regulatory Commission licensing standards.

Several of the more important issues for DOE that need to be addressed and resolved in moving toward external regulation of the DOE are:.

• Overlapping and conflicting regulatory requirements and priorities for nuclear facility safety and worker health and safety;
• The role and degree of citizen participation in the establishment of safety standards for DOE by the NRC;
• The role of States in regulatory authority over facility safety and worker protection in DOE nuclear facilities;
• Utilization of performance-based standards for regulating the wide variety of DOE nuclear facilities and operations;
• The impact of external regulation on the ability of DOE to meet its national security obligations;
• The availability of resources to support the move to external regulation of DOE;
• The applicability of current NRC regulations;
• The impact of external regulation on DOE's privatization efforts.^4,5

Several key benefits to external regulation of DOE are given below.

• The development of a "safety culture" at DOE comparable to that of the commercial nuclear industry;
• The development of stability in safety policy and management and elimination of the complexity in evolving internal and external regulation and oversight;
• The development of a single set of standards and requirements through a formal open process that does not lend itself easily to changes;
• The elimination of the inherent conflict of interest in self-regulation;
• Enhancement of the credibility of the Department by placing regulatory authority in bodies that are, and are seen to be, independent, impartial and competent.^4,5

The Advisory Committee on External Regulation and the DOE Working Group on External Regulation pondered many questions related to transition of DOE nuclear facilities to external regulation. It is hoped that real information gathered at pilot facilities during the pilot program will allow DOE to finally answer the question: Should DOE nuclear facilities be externally regulated.

1. F. S. Gosling, "The Manhattan Project," DOE/HR-0096, U. S. Department of Energy, September 1994.
2. Atomic Energy Act of 1946, Public Law 585, August 1946.
3. Energy Reorganization Act of 1974, Public Law 93-438, October 1974.
4. Advisory Committee on External Regulation of Department of Energy Nuclear Safety, "Improving the Regulation of Safety at DOE Nuclear Facilities," Washington, DC, December 1995.
5. U.S. Department of Energy,"Report of the Department of Energy Working Group on External Regulation," DOE/US-0001, December 1996.
6. U.S. Department of Energy, "Department of Energy to Submit Legislation for External Regulation of Nuclear Safety," DOE News, Washington, DC, December 1996.
7. U.S. Nuclear Regulatory Commission, "Strategic Assessment Issue: 2.Oversight of the Department of Energy," Washington, DC, September 1996.
8. Dr. Shirley Ann Jackson, "Sharing Regulatory Perspectives: The Nuclear Regulatory Commission in a Time of Change," U.S. Nuclear Regulatory Commission, Office of Public Affairs, No. S-97-18, Washington, DC, September 1997.
9. U.S. Department of Energy and U.S. Nuclear Regulatory Commission, "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," Washington, DC, November 21, 1997.
10. U.S. House of Representatives, Conference Report on H.R.2203, Energy and Water Development Appropriations Act, 1998, Page H7978- September 26, 1997.

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