[Federal Register Volume 59, Number 165 (Friday, August 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21128]


[[Page Unknown]]

[Federal Register: August 26, 1994]


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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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