# Enforcement of Employee Safety Standards at Nuclear Weapons Facilities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-21128 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** August 26, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 6450-01-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-21128. Public record. Not legal advice.