[Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
[Notices]
[Pages 5949-5950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2341]



[[Page 5949]]

DEPARTMENT OF LABOR

Occupational Safety and Health Administration


Notice of Memorandum of Understanding Between the Occupational 
Safety and Health Administration and the Office of Environment, Safety 
and Health Regarding Worker Safety and Health at Facilities Leased by 
the United States Enrichment Corporation

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Notice.

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SUMMARY: This notice is to advise the public of the issuance of a 
Memorandum of Understanding (MOU) between the U.S. Department of Labor, 
Occupational Safety and Health Administration (OSHA) and the U.S. 
Department of Energy (DOE) Office of Environment, Safety and Health. 
The MOU delineates the areas of responsibility of each agency at the 
gaseous diffusion plants owned by DOE and leased by the United States 
Enrichment Corporation (USEC); describes generally the efforts of the 
agencies to assure worker protection at these plants; and provides 
procedures for coordination of activities between DOE and OSHA.

EFFECTIVE DATE: December 21, 1994.

FOR FURTHER INFORMATION CONTACT:
Anne Cyr, Acting Director, Office of Information and Consumer Affairs, 
U.S. Department of Labor, Occupational Safety and Health 
Administration, Room N-3647, 200 Constitution Ave., N.W., Washington, 
D.C. 20210. Telephone: (202) 219-8615.

SUPPLEMENTARY INFORMATION: The Energy Policy Act of 1992, (the Energy 
Policy Act, 42 U.S.C. Section 2297 et. seq. ), created the USEC, a 
government corporation which administers uranium enrichment facilities 
leased from DOE. The Energy Policy Act also required the Nuclear 
Regulatory Commission (NRC) to establish standards for the regulation 
of the gaseous diffusion plants leased by the USEC. The NRC final rule 
set forth requirements for plant certification, and announced 
assumption of NRC regulatory authority over diffusion plants in ``late 
1995.'' See 59 FR 48944-48976.

    Until such time as the NRC assumes regulatory jurisdiction, DOE 
will exercise nuclear safety and safeguards and security oversight 
authority. The regulatory framework under which DOE exercises its 
authority is contained in a Regulatory Oversight Agreement incorporated 
in the lease agreement between DOE and USEC. Specific matters related 
to the process by which NRC will assume, and DOE will relinquish, 
responsibility for regulatory oversight under the Energy Policy Act are 
set forth in a Joint Statement of Understanding between Nuclear 
Regulatory Commission and Department of Energy on Implementing Energy 
Policy Act Provisions on Regulation of Gaseous Diffusion Uranium 
Enrichment Plant, 59 FR 4729 (February 1, 1994).
    Both DOE and OSHA have jurisdiction over safety and health at the 
portions of the gaseous diffusion plants leased by the USEC. A 
coordinated inter-agency effort, as outlined in the MOU (Appendix) will 
minimize potential gaps in the protection of the workers and avoid 
possible conflicting requirements.

Authority

    This document was prepared under the direction of Joseph A. Dear, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 
20210.

    Signed in Washington, D.C. this 19th day of January 1995.
Joseph A. Dear,
Assistant Secretary of Labor.

Appendix

Memorandum of Understanding Between the U.S. Department of Labor, 
Occupational Safety and Health Administration, and U.S. Department of 
Energy, Office of Environments, Safety and Health

I. Purpose and Background

    A. The purpose of this Memorandum of Understanding between the 
United States Department of Energy's (DOE) Office of Environment, 
Safety and Health and the United States Department of Labor's 
Occupational Safety and Health Administration (OSHA) is to delineate 
the areas of responsibility of each agency at the gaseous diffusion 
plants owned by DOE and leased by the United States Enrichment 
Corporation (USEC); to describe generally the efforts of the agencies 
to assure worker protection at these; and, to provide procedures for 
coordination of activities between DOE and OSHA.
    B. Both DOE and OSHA have jurisdiction over radiological safety and 
health at the portions of the gaseous diffusion plants leased by the 
USEC. A coordinated inter-agency effort can minimize potential gaps in 
the protection of workers and, at the same time, avoid possible 
conflicting requirements.

II. Hazards Associated With Gaseous Diffusion Plants

    Four basic categories of hazards are associated with the gaseous 
diffusion plants:
    A. Industrial safety hazards due to the plant's physical condition 
or its operations;
    B. Health hazards due to chemical and toxicological exposures 
associated with non-radioactive materials;
    C. Health hazards due to potential exposure associated with 
radioactive materials; and,
    D. Radiation hazards to the general public and the environment.
    OSHA will regulate the hazards listed in paragraphs II. A; B; and 
C. DOE will regulate the hazards listed in paragraphs II. C, and D.

III. DOE Responsibilities

    The Energy Policy Act of 1992, (the Energy Policy Act, 42 U.S.C. 
Section 2297 et. seq.), created the USEC, a government corporation, for 
purposes including leasing DOE's uranium enrichment facilities to 
market and sell enriched uranium and uranium enrichment and related 
services to the Department and domestic and foreign interests. The 
Energy Policy Act also requires the Nuclear Regulatory Commission (NRC) 
to establish standards for the regulation of the gaseous diffusion 
plants leased by the USEC by October 24, 1994, in order to protect the 
public health and safety from radiological hazards and to provide for 
the common defense and security. After these standards are promulgated, 
the USEC is required to apply at least annually for a certificate of 
compliance with these standards. Until such time as the NRC assumes 
regulatory jurisdiction at the gaseous diffusion plants, DOE will 
exercise nuclear safety and safeguards and security oversight authority 
to protect the public at the leased portions of the gaseous diffusion 
plant located in Paducah, Kentucky, and Piketon, Ohio. The regulatory 
framework for which DOE exercises its authority is contained in the 
Regulatory Oversight Agreement, Exhibit D to the Lease Agreement 
between DOE and USEC dated July 1, 1993. Specific matters related to 
the process by which NRC will assume, and DOE will relinquish, 
responsibility for regulatory oversight under the Energy Policy Act are 
set forth in a Joint Statement of Understanding between Nuclear 
Regulatory Commission and Department of Energy on Implementing Energy 
Policy Act Provisions on Regulation of Gaseous Diffusion Uranium 
Enrichment Plant, 59 FR 4729 (February 1, 1994). [[Page 5950]] 
    DOE's responsibility is to promote and protect the radiological 
health and safety of the public and workers and to provide for the 
common defense and security at the leased portion of the DOE-owned 
gaseous diffusion plants. These responsibilities are performed pursuant 
to the guidelines established in the Safety Basis and Framework for DOE 
Oversight of the Gaseous Diffusion Plants (Appendix A to the Regulatory 
Oversight Agreement); and the conducting of inspections, reviews, 
investigations, and enforcement actions, in accordance with the 
Regulatory Oversight Agreement.

IV. OSHA Responsibilities

    OSHA is responsible for administering the requirements of the 
Occupational Safety and Health Act of 1970 (the OSH Act, 29 U.S.C. 651 
et. seq.). Under the OSH Act, every employer has a general duty to 
furnish each employee a place of employment which is free from 
recognized hazards which may cause death or serious physical harm; 
employers are also required to comply with specific OSHA standards, 
regulations, and other requirements.
    The Energy Policy Act of 1992 specifically makes all OSHA 
requirements, including all injunctive and administrative enforcement 
remedies, applicable to USEC facilities notwithstanding the limitations 
otherwise imposed on OSHA enforcement by section 4(b)(1) of the 
Occupational Safety and Health Act. Additionally, the Energy Policy Act 
specifically waives any immunity which might otherwise be applicable to 
USEC, 42 U.S.C. Section 2297b-11(c) (1992). Therefore, OSHA 
requirements applicable to working conditions within the gaseous 
diffusion facilities administered by USEC or its subcontractors are not 
subject to preemption by regulations issued by other federal agencies.
    Accordingly, OSHA will enforce all applicable standards, rules and 
requirements including, but not limited to, the standards on ionizing 
radiation hazards, 29 CFR 1910.96; control of hazardous energy sources, 
29 CFR 1910.147; hazardous waste operations and emergency response, 29 
CFR 1910.120; hazard communication, 29 CFR 1910.1200; and, the general 
duty clause. It is the intention of OSHA and DOE to coordinate their 
regulatory and oversight activities in a manner which avoids, to the 
extent possible, the imposition of inconsistent obligations on USEC.

V. Coordination Procedures

    In recognition of the agencies' authorities and responsibilities 
enumerated above, the following procedures will be followed:

A. Referrals

    1. Although DOE does not conduct inspections of industrial safety 
in the course of inspections of nuclear safety and safeguards and 
security, DOE Regulatory Oversight personnel may identify occupational 
safety or health concerns within the area of OSHA responsibility. In 
such instances:
    a. Employee complaints received by DOE regarding issues that are 
within OSHA's purview will be immediately referred to OSHA, and the 
identity of the complaining employee shall not be disclosed to any 
employer by either OSHA or DOE.
    b. All other safety and health concerns within OSHA's purview 
identified by DOE will be referred to USEC management in writing for 
expedient correction. DOE will provide the same information on these 
concerns to local union bargaining representatives of the USEC 
contractor employees.
    c. Serious hazards within OSHA's purview will be reported to OSHA 
if uncorrected. DOE will periodically advise OSHA on the number and 
nature of serious hazards referred to USEC for correction.
    2. OSHA Regional Offices will inform the DOE Regulatory Oversight 
Manager of matters which are in DOE's purview when such matters are 
identified during OSHA safety and health inspections or through 
complaints (identification of the complaining employee shall not be 
disclosed by DOE or OSHA). OSHA will provide the same information on 
these concerns to local union bargaining representatives of the USEC 
contractor employees.
    a. The following are examples of reportable concerns:
    (1) Insufficient security control affecting nuclear or radiological 
health and safety.
    (2) Improper posting of radiation areas.
    (3) Hazardous conditions relating to radiological or nuclear 
safety.

B. Inspections

    1. DOE and OSHA will not normally conduct joint inspections at the 
gaseous diffusion plants. However, under certain conditions, such as 
investigations or inspections following accidents or resulting from 
reported activities as discussed in paragraph V. A., it may be mutually 
agreed on a case-by-case basis that joint investigations are 
appropriate.
    2. The processing of uranium materials at the gaseous diffusion 
plants may present overlapping chemical and nuclear operation safety 
hazards which can best be evaluated by joint DOE-OSHA assessments.

C. Coordination

    1. DOE and OSHA will, to the fullest extent possible, cooperate and 
coordinate at all organizational levels to develop and carry out 
information exchange, technical and professional assistance, referrals 
of alleged violations, and related matters concerning compliance and 
law enforcement activity to ensure the health and well-being of the 
workforce and the general public.
    2. Resolution of policy issues concerning agency jurisdiction and 
operations will be coordinated by appropriate DOE and OSHA staff with 
input from the Office of the Solicitor. DOE and OSHA will designate 
points of contact for carrying out interface activities.
    3. The whistleblower protection provisions of the Energy 
Reorganization Act, 42 U.S.C. Section 5851, as well as those in section 
11(c) of the OSH Act, 29 U.S.C. Section 660(c), are applicable to 
employees of USEC and contractors at USEC administered facilities.

VI. Effective Date, Amendment, and Termination

    This agreement shall become effective when signed by both parties. 
It may be modified or amended by written agreement between the parties. 
Such amendments shall become part of, and shall be attached to, this 
agreement. This agreement shall remain effective until terminated by 
either party upon 30 days written notice to the other, or until 
completion of the transition from DOE Regulatory Oversight to NRC 
enforcement of radiological safety and health matters at USEC 
facilities. The parties agree that if the transition process is not 
completed by October 1, 1995, the parties will review this MOU and make 
a decision on whether to renew, revise, reissue, or terminate the MOU.

    Dated: December 21, 1994.
Joseph A. Dear,
Assistant Secretary, Occupational Safety and Health Administration.
    Dated: December 21, 1994.
Tara O'Toole, M.D., M.P.H.
Assistant Secretary, Environment, Safety and Health.
[FR Doc. 95-2341 Filed 1-30-95; 8:45 am]
BILLING CODE 4610-26-M