RECOMMENDATION 94-5 TO THE SECRETARY OF ENERGY
                pursuant to 42 U.S.C.  2286a(5)
             Atomic Energy Act of 1954, as amended.



Dated:  December 29, 1994
         
The Board has been following with considerable interest the
structure of DOE's nuclear health and safety requirements as the
transition is being made from the use of Orders to rulemaking.  The
Board recognizes that the change has been prompted by provisions of
the Price/Anderson Act Amendments of 1988, the need for uniform,
enforceable requirements, and by a desire of the Department to
provide greater opportunities for public input into the process for
establishment of requirements.  Thus the Board understands the
reasons for development and promulgation of nuclear safety
requirements through rulemaking.  However, the Board has expressed
reservations in the past and remains concerned today lest the
process of conversion of Orders to rules is used as occasion to:

(1)  Unduly relax or eliminate important nuclear safety
     requirements in Orders.

(2)  Relegate good nuclear safety practices extant in existing
     Orders to optional status.

(3)  Forego or delay current efforts to bring safety practices into
     compliance with mutually agreed implementation plans that
     respond to recommendations of the Board.

In accepting Recommendation 91-1, your predecessor advised that
rulemaking would be a time-consuming process, and he committed to
expedited issuance and implementation of updated requirements in
DOE Orders while rules are developed.  More recently, in your
response of October 21, 1994 to the Board's May 6, 1994 inquiry to
the Department, you also acknowledged the need for interim
development, revision, and compliance with requirements in DOE
Orders while rules are being promulgated.

In fact, your response reflected more completely the process that
has been developed in discussions with the Board and its staff.  It
stated that: 

(1)  The Department is committed to a requirements-based safety
     management program.

(2)  Environment, safety and health requirements are identified in
     rules and Orders.

(3)  Orders are the prevailing means by which the Department
     identifies management objectives that are requirements for its
     personnel, and when incorporated into contracts, requirements
     for DOE contractors.

(4)  Nuclear safety Orders are being phased into rules.  Rules are
     the documents by which the DOE establishes binding
     requirements of general applicability and are adopted pursuant
     to the Administrative Procedures Act.

(5)  Contractors are expected to comply with a rule or Order when
     it becomes effective.  

[Note:  Rules actually require an implementation plan and then
allow a period for achieving compliance.  A similar phase-in period
is permissible for requirements in Orders incorporated into
contracts.]  

(6)  Standards/Requirements Identification Documents (S/RIDs) are
     developed as compilations of site and facility-specific
     requirements contained in applicable legislation, rules,
     Orders, technical standards and other directives necessary to
     operate facilities or conduct DOE activities with adequate
     protection of workers and the general public.  

This summary clearly shows that DOE intends that the definition of
what constitutes adequacy in the way of protection of workers and
the public extends beyond the requirements of rules.  In that, the
Board definitely concurs.  It is the compilation of requirements as
envisaged for RIDs that represents the more comprehensive base upon
which sites and facilities are to be managed from the environment,
health and safety viewpoint.  This has also been the thrust of many
of the Board recommendations dealing with Order compliance.

However, the action toward development of S/RIDs has been slow. 
Requirements in Orders have been and are still the prevailing DOE
means for defining safety requirements for contractors. 
Requirements in Orders are made enforceable by incorporating Orders
into contracts.  Therefore, the Board has reviewed a number of
existing M & O contracts relative to provisions for Order
compliance.  The Board has also examined the health and safety
management specifications included in several recently proposed
contract actions (for example, at Rocky Flats and Hanford/Solid
Waste Management).   Performance per conditions specified either in
existing contracts or those more recently examined will not in our
view assure delivery of the safety management programs we believe
that the Board and the Department expect.

Though the Board has been reassured by your letter of October 21
and by other means that requirements in DOE Orders are to remain
operative until replaced by rules, there appears to be contrary
guidance being issued to the field.  For example, a May 27, 1994
memorandum from the Assistant Secretary for Defense Programs
provides guidance that in effect encourages a premature shift in
resources from Order compliance to rule compliance.  For rules that
will have progressed far enough in the promulgation process that
only a few months are left for a show of compliance, such action
may be appropriate as regards establishing priorities in assigning
resources.  However, such action should not be construed as
countenancing relaxation of necessary requirements of the existing
Order.  Moreover, for proposed rules not nearly so far along in the
rule-making process,  impending developments should not be taken as
cause for a slow-down on  compliance efforts or the upgrading of
applicable requirements now in Orders and contracts.

Along similar lines, the Board has noted a November 30, 1994
advisory from the Albuquerque field office to DOE headquarters
(M.S. Dienes to J. Fitzgerald) that a hold has been placed on the
radiation protection functional appraisal process until DOE review
and approval of the implementation plans for the rule have been
completed.  There is no rational justification for such deferral. 
Such action suggests that field personnel may have been led to
believe that there will be marked differences between those
radiation protection programs under the rule and the requirements
under existing Orders incorporated in contracts.

The provisions of the contracts and the above-mentioned advisories
by DOE line management indicate that the integrated use of nuclear
safety-related Rules, Orders, standards and guides in defining and
executing DOE's safety management program may not be sufficiently
well understood by either the M & O contractors or DOE managers. 
This issue was raised in the Board's letter of May 6, 1994 to the
Department.

Given the situation as described above, the Board believes that
further DOE actions are needed to ensure there is no relaxation of
commitments made to achieve  compliance with requirements in Orders
while proposed rules are undergoing the development process.  These
actions should also provide for smooth transition of Orders to
rules once promulgated.  Toward that end, the Board recommends that
DOE:

(1)  Widely disseminate the information provided to the Board in
     response to our May 6, 1994 letter on DOE's Safety Management
     Program, and take steps to ensure that key technical and
     contracts personnel are well schooled in this topic.

(2)  Promptly issue appropriate directives and procedures to DOE
     Headquarters, Field Offices and O&M contractors which:
               
     (a)  embrace the basic principle that work already commenced
          or planned to develop and implement requirements in
          existing or revised Orders or S/RIDS should continue
          while rulemaking is underway;
 
     (b)  explain in detail the relationship between safety
          requirements contained in Orders in O&M contracts and
          those contained in new rules, and the process by which a
          rule may "supersede" parts, or the entirety, of a safety
          Order;
               
     (c)  explain that compliance with a requirement whether in a
          rule, Order or other directive is not accomplished by
          submittal of an adequate implementation plan but requires
          completion of action proposed by that plan;
               

     (d)  provide guidance to contractors and DOE program offices
          on how to coordinate implementation plans for multiple
          requirements such as those in Orders, rules, S/RIDs and
          other binding directives; and,
               
     (e)  in the process of eliminating duplicate requirements and
          in arranging the remaining ones along more user friendly
          guidelines, which the Board agrees is desirable, ensure
          that existing requirements that are necessary and
          appropriate are not relaxed nor eliminated, and schedule
          commitments for achieving compliance are not delayed.

(3)  Ensure that compliance with the minimal (base-line) set of
     safety requirements contained in Rules is not construed as
     full compliance with all necessary safety requirements and
     does not displace effort to develop and implement through RIDs
     the best nuclear safety requirements and practices embodied in
     rules, Orders, standards, and other  safety  directives.

(4)  Clearly establish such line, oversight, and legal
     responsibilities for review and approval of contractual
     provisions specifying environment, health and safety
     requirements for DOE contractors to ensure that the
     requirements-based safety management program expected by the
     DOE will be  uniformly developed and consistently imposed
     across the complex.


John T. Conway, Chairman