[DNFSB
LETTERHEAD]
April 1, 2004
The Honorable Robert Gordon Card
Under Secretary of Energy, Science and
Environment
U.S. Department of Energy
1000 Independence Avenue, SW
Washington, DC 20585-1000
Dear Mr. Card:
The Defense Nuclear Facilities Safety Board
(Board) continues to work energetically with the Department of Energy (DOE) to
construct satisfactory regulations for the protection of the health and safety
of workers at DOE facilities. In
parallel with this effort, the Board has come upon use of the term
“site/facility management contractor” in several proposed DOE directives. This specific term first came to the Board’s
attention in the spring of 2003 in the context of draft revisions to DOE Order
251.1A, Directives System. Even prior to that, however, the Board wrote
to you on January 24, 2003, concerning your proposal to restrict “the applicability
of DOE Orders to only major facility management contractors”.
During the past year, a series of meetings
and conference calls between the Board’s staff and its DOE counterpart have
made no progress toward understanding the meaning and purpose of “site/facility
management contractor”. Most recently,
this term is used in a proposed revision of DOE Order 251.1A (draft dated March
4, 2004), where the following definition is given:
A
Site/Facility Management Contract is a contract that tasks the contractor with responsibility
for the stewardship of a DOE-owned Site/Facility, including the operation and/or
maintenance of its buildings, infrastructure, and other assets. A Management and Operating Contract is a type
of Site/Facility Management Contract that tasks the contractor with
responsibility for managing and operating an ongoing, continuing DOE mission at
the site/facility such as weapons production or the conduct of scientific research
and development at a Federally Funded Research and Development Center or other
laboratory. An M&O contract is
awarded pursuant to and consistent with FAR 17.601 and DEAR 970. In the absence of a continuing DOE mission, a
contract for the environmental remediation and closure of a site/facility where
the contractor maintains primary responsibility for site/facility stewardship
is a Site/Facility Management Contract, but usually will not be structured as a
Management and Operating Contract.
The impact of this definition on defense
nuclear facilities is unclear. To
achieve a prompt common understanding of your proposal, and to have DOE Order
251 revisions issued without further delay, the Board requests, pursuant to 42
U.S.C. § 2286b(d), a briefing
within 15 days of receipt of this letter addressing the following questions:
1.
What is the
purpose of the use of this term?
2.
(a) Which
existing contractors performing hazardous work at defense nuclear facilities
would be excluded under the proposed definition? (b) What criteria were used to determine
inclusion or exclusion? (c) How are
these criteria documented for application to future contracts?
3.
With respect
to the contractors identified in question #2, what mechanism will be used to
apply the safety requirements embedded in DOE Orders to those contractors’ activities?
4.
How have DOE
program and field offices responsible for assuring safety at defense nuclear
facilities been informed of the effect of the proposed change and provided detailed
procedures to be followed in imposing safety requirements on contractors falling
outside the class of “site/facility management contractors?”
5.
What is the
relationship between the proposed change to DOE Order 251.1A and the DEAR
clauses regarding (a) integrated safety management and (b) laws, regulations, and
directives?
6.
The proposed
change to DOE Order 251.1A includes direction to develop changes to the DEAR
clauses in cases in which the owner of a DOE Order believes that some or all of
the order’s requirements should be applied to contractors other than “site/facility
management.” Does DOE contemplate that
rulemaking would be necessary in such cases?
Sincerely,
John T. Conway
Chairman
c: The
Honorable Linton Brooks
Mr. Mark B.
Whitaker, Jr.