Enforcement of Employee Safety Standards at Nuclear Weapons Facilities

DEPARTMENT OF ENERGY

Office of Environment, Safety and Health

Enforcement of Employee Safety Standards at Nuclear Weapons

Facilities

AGENCY: Department of Energy.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: The Department of Energy (DOE or the Department) hereby gives

notice of, and invites public comments on, its plans to implement the

enforcement authority provided pursuant to section 3131(b) of the

National Defense Authorization Act for Fiscal Years 1992 and 1993

(Act). This statute provides for the assessment of civil penalties

against DOE contractors who fail to provide training to employees who

are assigned to carry out hazardous substance response or emergency

response duties, or who fail to certify to DOE that employees are

adequately trained. This advance notice requests public comment on

DOE's plan to implement the enforcement provisions of the statute.

DATES: The public is invited to submit comments and recommendations to

the address listed below by October 25, 1994.

ADDRESSES: Mail or telefax comments to: Roy Gibbs (EH-31.1), Office of

Occupational Safety, Department of Energy, Washington, D.C. 20585,

(301) 903-4343, Telefax No. (301) 903-2239

Comments may be examined in the DOE Freedom of Information Reading

Room, 1E-190, 1000 Independence Avenue SW., Washington, D.C. 20585,

between 9:00 AM and 4:00 PM, Monday through Friday.

FOR FURTHER INFORMATION CONTACT: David M. Smith (EH-31.1), Office of

Occupational Safety, Department of Energy, Washington, D.C. 20585 (301)

903-4669.

SUPPLEMENTARY INFORMATION

Introduction

Section 3131 of the Act (42USC7274d(6)), enacted on December 5,

1991, addresses the issue of worker training at nuclear weapons

facilities. Subsection (a) provides for the awarding of grants to train

workers and to develop training curricula. Subsection (b) provides for

the assessment of civil penalties against any DOE contractor who fails

to provide training to its employees who are engaged in hazardous

substance response or emergency response at DOE nuclear weapons

facilities. Subsection (b) requires that penalties shall be assessed

against any contractor who fails to provide the training, or fails to

certify to DOE that its employees are adequately trained for such

response pursuant to orders issued by DOE relating to employee safety

training.

Since the passage of the Occupational Safety and Health Act of 1970

(OSH Act), Pub. L. No. 91-596, contractor employee health and safety

protection at DOE nuclear facilities has been exempt from Occupational

Safety and Health Administration (OSHA) enforcement under section

4(b)(1) of the OSH Act. This section provides that the OSH Act does not

apply to working conditions of employees if another Federal or state

agency exercises statutory authority to prescribe or enforce standards

or regulations affecting occupational safety and health (OSH). DOE, as

well as its predecessor agencies, the Atomic Energy Commission and the

Energy Research and Development Administration, has exercised such

authority with regard to contractor employees at facilities operated

under authority of the Atomic Energy Act of 1954.

On May 5, 1993, the Secretary of Energy announced a number of

safety and health initiatives stressing the need for the Department to

operate on a par with private industry in the safety and health arena.

One of those initiatives involved the commencement of consultations

with OSHA with the aim of establishing OSHA regulation of all DOE

facilities. The Secretary recognized, however, that OSHA is not now

ready to undertake regulation of DOE activities, and in light of the

significant issues that must be addressed prior to the implementation

of OSHA jurisdiction, the Department anticipates that a transition

period of three to five years is necessary. Nonetheless, the Department

is currently obligated to implement the enforcement authority of

section 3131(b) of the Act, and intends to do so as an interim measure

pending the transition to OSHA jurisdiction. The Department believes

that implementation of this enforcement authority during the transition

period will help to ensure that the training requirements for

contractor employees are met. DOE invites the public to comment on its

plans to implement its enforcement authority pursuant to section

3131(b) of the Act.

Background and Legislative History

Section 3131 of the Act contains two substantive provisions aimed

at addressing the concern of Congress regarding the adequacy of worker

safety training for employees handling hazardous substances, and

responding to emergencies involving hazardous substances, at the

nation's nuclear weapons facilities. Subsection (a) authorizes the

Secretary to award grants to nonprofit organizations that have

demonstrated (as determined by the Secretary) capabilities in providing

safety and health training and in involving, in training, groups of

workers whose duties include hazardous substance response or emergency

response. The Secretary is required to give preference to employee

organizations and joint labor-management training programs that are

grant recipients under section 126(g) of the Superfund Amendments and

Reauthorization Act of 1986, 42 U.S.C. 9660a, a program administered by

the National Institute of Environmental Health Sciences (NIEHS). The

Department has entered into an agreement with NIEHS to award and

administer the grants provided under section 3131(a) of the Act.

Section 3131(b), the subject of this notice, provides that the

Secretary shall assess civil penalties of up to $5,000 per day against

any DOE contractor who, as determined by the Secretary, fails to

provide training for employees engaged in hazardous substance response

or emergency response, or who fails to certify to the Department that

its employees are adequately trained for such response pursuant to DOE

orders relating to employee safety training. Because of this statutory

mandate, DOE does not intend to consider a reduction in contractor

award fees in lieu of payment of civil penalties.

The Secretary is required by section 3131(c) to prescribe

regulations for the implementation of these requirements. The

Department intends to proceed with rulemaking after completion of its

review of the comments and materials received in response to this

Notice.

Section 3131(d) provides that the term ``hazardous substance''

includes both radioactive waste and mixed radioactive and hazardous

waste. The Department intends also to cover substances identified

within the definition of hazardous substance in section 101(14) of the

Comprehensive Environmental Response, Compensation and Liability Act of

1980 (CERCLA) (42 U.S.C. 9601.101(14)). The statute does not define the

term ``nuclear weapons facility.''

Certification of Training

Section 3131 places on the contractor the burden of conducting

required training, certifying the completion of such training, and

keeping records to document that the training requirement has been

satisfied. In developing its implementing regulations, DOE is

particularly interested in receiving comments on the following matters:

1--DOE intends to make contractors responsible for maintaining all

documentation related to the hazardous substance and emergency response

training of their work force. DOE will consider what, if any, data

should be kept, and in what format. DOE's goal will be to provide easy

review for DOE field inspectors while minimizing the burden on

contractors. DOE also is considering requiring a wallet-sized photo

identification card for each trained employee that would contain, among

other things, the date of refresher training, giving DOE the

opportunity to document training in the field.

2--Section 3131 permits DOE contractors to certify that employees

have been adequately trained and do not need additional training. DOE

seeks comment on the most effective and efficient way for the employer

to certify that employees are adequately trained especially in those

cases where the employer does not actually provide the training.

3--One objective of section 3131(b) is to ensure that all employees

who are, or may be, engaged in hazardous substance response or

emergency response at the Department's nuclear weapons facilities

receive adequate safety training. DOE has the further objective of

ensuring that any enforcement program is structured to provide

appropriate incentives for DOE contractors to comply with DOE

requirements applicable to this training, including self-

identification, reporting, and prompt correction of deficiencies.

Comments are requested on these objectives and on ways to achieve these

objectives in an effective and efficient manner for both DOE and its

contractors.

4--The Department is also developing criteria for assessing the

adequacy of contractor training programs for employees engaged in

hazardous substance or emergency response operations. These criteria

will be used by DOE field inspectors to evaluate and certify the

adequacy of contractor training programs. DOE seeks comment on the

development of appropriate criteria.

5--The Act defines the term ``hazardous substance'' to include

radioactive waste and mixed radioactive and hazardous waste. This

definition is not limited, however, to those substances. For purposes

of the implementing regulations, DOE intends to include within the

definition of hazardous substance, in addition to radioactive and mixed

waste, those substances identified within the definition of hazardous

substance in section 101(14) of CERCLA. DOE seeks comments on this

definition.

6--DOE is considering defining ``nuclear weapons facility'' as

follows: ``Any DOE reactor or non-reactor nuclear facility involved in

research, production, assembly, storage, dismantling, or disposal of

nuclear weapons, or material for nuclear weapons, that generates or

contains hazardous substances, radioactive waste or mixed radioactive

and hazardous waste.'' Comments are requested on this definition.

7--Comments are requested on the enforcement procedures that are

appropriate to assure compliance with the intent of Congress, including

the desirability of integration of the section 3131(b) enforcement

procedures with the proposed DOE program set forth at 10 CFR Part 820,

for enforcing violations of nuclear safety requirements which includes

assessment of civil penalties under separate statutory authority, and

whether the Department should provide for exemption from dual civil

penalty assessments under both Part 820 and the Act. Comments are also

requested on enforcement options such as varying penalty levels

commensurate with the severity of the violation, past performance and

multiple violations.

DOE solicits comments on all of these issues and objectives, and on

ways to achieve these objectives in an effective and efficient manner

for both DOE and its contractors.

Upon completion of its review of all comments received and other

relevant materials, DOE will develop a Notice of Proposed Rulemaking

for publication in the Federal Register.

Issued in Washington, DC, August 15, 1994.

Tara O'Toole,

Assistant Secretary, Environment, Safety and Health.

[FR Doc. 94-21128 Filed 8-25-94; 8:45 am]

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