[Federal Register Volume 61, Number 149 (Thursday, August 1, 1996)]
[Notices]
[Pages 40248-40250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19609]


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[[Page 40249]]

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

NUCLEAR REGULATORY COMMISSION

[NRC Docket Nos. 70-7001; 70-7002]


Memorandum of Understanding With Respect to the Gaseous Diffusion 
Plants

AGENCIES: Nuclear Regulatory Commission and Occupational Safety and 
Health Administration, Labor.

ACTION: Publication of Memorandum of Understanding between the Nuclear 
Regulatory Commission (NRC) and the Occupational Safety and Health 
Administration (OSHA).

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SUMMARY: NRC and OSHA have entered into a Memorandum of Understanding 
that describes the authorities of NRC and OSHA in implementing the 
Energy Policy Act of 1992 provision on occupational safety and health 
hazards at the gaseous diffusion plants, currently operated by the U.S. 
Enrichment Corporation (USEC), covering inspection, investigation, 
enforcement, and other regulation relating to such hazards. A 
memorandum of agreement is required by the new USEC Privatization Act, 
and will apply to operations of USEC and any corporation which succeeds 
USEC. The text of the Memorandum of Understanding is set forth below.

FOR FURTHER INFORMATION CONTACT: Mr. John W. N. Hickey, telephone 301-
415-7192, Office of Nuclear Material Safety and Safeguards, MS T-8A-33, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555; or Mr. 
Gregory Watchman, telephone 202-219-6091, Occupational Safety and 
Health Administration, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210.

    Dated at Rockville, Maryland, this 26th day of July 1996.

    For the Nuclear Regulatory Commission.
John W.N. Hickey,
Chief, Enrichment Branch, Division of Fuel Cycle Safety and Safeguards.
    For the Occupational Safety and Health Administration.
Gregory Watchman,
Deputy Assistant Secretary for Occupational Safety and Health.

Memorandum of Understanding Between the Nuclear Regulatory Commission 
and the Occupational Safety and Health Administration With Respect to 
the Gaseous Diffusion Plants

I. Legislation and Authorities

    The Atomic Energy Act of 1954, as amended by the Energy Policy 
Act of 1992 (the Act), created the United States Enrichment 
Corporation (USEC), a government corporation, to manage and operate 
the two uranium gaseous diffusion enrichment plants (GDPs) in 
Paducah, Kentucky, and Piketon, Ohio, owned and previously operated 
by the U.S. Department of Energy (DOE). Pursuant to the Act, on July 
1, 1993, USEC began leasing from DOE substantial operating portions 
of the two GDPs. Section 1312 of the Act requires USEC to be subject 
to and comply with the Occupational Safety and Health Act (OSH Act) 
in the same manner, and to the same extent, as an employer is 
subject to the OSH Act, notwithstanding sections 3(5), 4(b)(1), and 
19 of the OSH Act.
    In addition, the Act requires the Nuclear Regulatory Commission 
(NRC) to promulgate standards applicable to the GDPs, to protect the 
public health and safety from radiological hazards, and to provide 
for the common defense and security. NRC must establish an annual 
certification process for compliance with these standards. NRC 
published its final standards, 10 CFR Part 76, ``Certification of 
Gaseous Diffusion Plants,'' on September 23, 1994 (59 FR 48944). NRC 
will assume regulatory oversight responsibility with respect to 
USEC's compliance with the Part 76 standards after NRC completes the 
first compliance certification process.
    The USEC Privatization Act, signed into law on April 26, 1996, 
provides for establishment of a private corporation to succeed USEC. 
The USEC Privatization Act specifies that the private corporation 
will be subject to the OSH Act, but the exceptions to sections 3(5), 
4(b)(1), and 19 were removed with respect to the private successor. 
Furthermore, the USEC Privatization Act requires NRC and 
Occupational Safety and Health Administration (OSHA) to enter into a 
memorandum of agreement, within 90 days of enactment of the 
Privatization Act, to govern the exercise of their authority over 
occupational safety and health at the GDPs.

II. Background and Purpose

    A. Both NRC and OSHA have responsibilities concerning 
occupational safety and health at GDPs. Because it is not always 
practical to sharply identify boundaries between the nuclear and 
radiological safety regulated by NRC and the industrial safety 
regulated by OSHA, the two agencies have agreed to coordinate their 
regulatory programs to assure worker safety, avoid regulatory gaps 
in the protection of workers, and avoid duplicative regulation.
    B. The purpose of this Memorandum of Understanding (MOU) between 
NRC and OSHA is to delineate the general areas of responsibility of 
each agency; to describe generally the efforts of the agencies to 
achieve worker protection; and to provide guidelines for 
coordination of interface activities between the two agencies at the 
GDPs. The MOU applies both to USEC and any private successor 
corporation.
    C. DOE remains the owner of the GDP sites and facilities, and 
continues to conduct and regulate activities at the sites that are 
outside NRC jurisdiction. This MOU does not apply to DOE facilities 
that are not leased, and does not affect jurisdictional issues 
between OSHA and DOE.

III. Hazards Associated With GDPS

    Working conditions at the GDPs involve both radiological and 
non-radiological occupational hazards. Frequently, conditions 
involve a combination of these hazards. Examples are: (1) 
radioactive materials and other chemicals, in the same work area, 
that present potential radiological and chemical hazards, (2) 
hazardous chemicals that could adversely affect radiological safety 
or could be released from the processing of radioactive materials, 
and (3) a fire or explosion hazard that could cause a release of 
radioactive material and other hazardous chemicals.
    In general, NRC will apply its standards to working conditions 
involving radiological hazards, OSHA will apply its standards to 
working conditions involving non-radiological hazards, and both 
agencies will apply their standards to conditions involving a 
combination of hazards. NRC and OSHA will coordinate their efforts 
as specified in this memorandum.

IV. NRC Responsibilities

    NRC is responsible for certifying two leased GDPs, as mandated 
by the Act and other applicable statutes. NRC will conduct 
compliance certification in accordance with 10 CFR Part 76. This 
will include regulation of radiological hazards and any other 
hazards that may affect radiological safety of the facilities.
    NRC's responsibilities include protecting public health and 
safety, including workers, and protecting and safeguarding materials 
and plants in the interest of national security. Agency functions 
are performed through: standards-setting and rulemaking; technical 
reviews and studies; conduct of public hearings; issuance of 
compliance certificates; inspection, investigation and enforcement; 
and evaluation of operating experience.

V. OSHA Responsibilities

    OSHA is responsible for administering the requirements 
established under the OSH Act and OSHA standards. Under the OSH Act, 
employers have a general duty to furnish each employee with a place 
of employment that is free from recognized hazards that can cause 
death or serious physical harm and to comply with all OSHA 
standards, rules, and regulations. OSHA standards contain 
requirements designed to protect employees against workplace 
hazards. Under the OSH

[[Page 40250]]

Act, OSHA is authorized among other things to conduct workplace 
health and safety inspections, including inspections in response to 
employee complaints, and to issue citations and conduct enforcement 
actions.
    Section 1312 of the Energy Policy Act contains certain 
exceptions to the OSH Act as applied to USEC. The USEC Privatization 
Act deleted these exceptions with respect to application of the OSH 
Act to a private corporation which succeeds USEC.

VI. Implementation

    In recognition of the agencies' authorities and responsibilities 
enumerated above, the following procedures will be followed:
    A. NRC will apply its standards in inspection and enforcement of 
working conditions involving radiological hazards or combined 
hazards as described in Paragraph III. OSHA will apply its standards 
in inspection and enforcement of working conditions involving non-
radiological hazards or combined hazards as described in Paragraph 
III. OSHA will not normally conduct enforcement actions with regard 
to GDP working conditions that involve solely radiological hazards.
    B. It is not intended that either agency will in any way be 
restricted from regulating safety within their respective 
jurisdictions. If NRC or OSHA identifies, or is notified by the 
operator of, a conflict between NRC and OSHA requirements, both 
agencies will work together to resolve the concern promptly.
    C. NRC has established a permanent site office and assigned 
full-time inspectors at each GDP, and plans to continue this 
arrangement for the foreseeable future. The results of NRC 
inspections will be provided to OSHA on request, subject to 
applicable procedures to protect classified and proprietary 
information. The information will also be available in NRC local 
public document rooms, and available to GDP workers on request, 
except for any portions containing classified, proprietary, private, 
or other information withheld from the public in accordance with 
applicable laws and regulations. NRC resident inspectors will also 
be available to discuss working conditions with workers.
    D. Although NRC does not conduct inspections exclusively focused 
on non-radiological safety, in the course of inspections related to 
radiological hazards or combined hazards, NRC personnel may identify 
non-radiological worker safety concerns. NRC will bring the 
identified matters to the attention of GDP management. Significant 
worker safety concerns will be documented in writing and made 
available as specified in Paragraph VI.C. In addition, OSHA will be 
informed as follows:
    1. Referral to OSHA of Hazards Identified by NRC. If non-
radiological worker safety concerns are identified by NRC, or if 
USEC demonstrates a pattern of unresponsiveness to non-radiological 
worker safety concerns identified by others, NRC will inform the 
appropriate OSHA Regional Office.
    2. Referral to OSHA of Worker Safety and Health Complaints. NRC 
will refer worker safety or health complaints, related to non-
radiological or combined hazards, to the appropriate OSHA Regional 
Office in accordance with existing NRC procedures. These procedures 
provide for protection of the identity of the complainant to the 
extent feasible.
    E. To the extent practicable, OSHA inspectors will inform the 
NRC Site Office, on arrival on site, of OSHA inspections in areas 
where combined radiological and non-radiological hazards are present 
as described in Paragraph III. Findings from such inspections will 
be shared and coordinated with NRC.
    F. OSHA Regional Offices will inform the NRC Region III Office 
or Site Office of matters related to radiological hazards or 
combined hazards, when such matters come to their attention during 
inspections or through complaints. Workers' complaints falling 
within NRC jurisdiction will be handled by NRC in accordance with 
existing procedures.
    G. Worker representatives may accompany NRC inspectors on 
inspections of working conditions as provided in 10 CFR Part 19. 
Worker representatives may accompany OSHA inspectors as provided in 
29 CFR Part 1903.
    H. The employee protection provisions in Section 211 of the 
Energy Reorganization Act of 1974, as amended, 10 CFR Part 76.7, and 
Section 11 (c) of the OSH Act are applicable to employees of USEC 
and contractors at its administered facilities.
    I. In recognition of the fact that both NRC and OSHA will 
conduct inspections in areas where combined hazards are present, 
OSHA will provide NRC personnel with basic chemical and industrial 
safety training in OSHA safety standards, consistent with ongoing 
OSHA training programs and resource constraints. Also, NRC will 
provide OSHA personnel with training in basic radiation safety 
requirements, consistent with ongoing NRC training programs and 
resource constraints. Details of such training will be as mutually 
agreed to by the NRC Technical Training Center and the OSHA National 
Training Institute.

VII. Enforcement

    A. Each agency will conduct an inspection and enforcement 
program within its responsibilities as warranted.
    B. Each agency will take enforcement actions as it deems 
appropriate within the limits of its authorities. Upon completion of 
any NRC and/or OSHA inspections/investigations associated with the 
same set of facts or the same incident for which either agency 
intends to take enforcement action, NRC and OSHA will consult with 
each other on the results of their respective inspections and will 
jointly define the scope of enforcement actions to minimize 
duplicative enforcement actions and preclude duplicative civil 
penalties.

VIII. Contacts

    NRC and OSHA will designate appropriate contacts for 
implementation of this memorandum. A list of OSHA contacts will be 
provided to the Director, Office of Nuclear Material Safety and 
Safeguards, NRC. A list of NRC contacts will be provided to the 
Director of Policy, OSHA.

IX. Effective Date, Revision, and Termination

    This memorandum shall be effective upon signature by authorized 
representatives of the respective agencies, and shall continue in 
effect until revised by mutual agreement, unless terminated by 
either party upon 120 days notice in writing.

    For the Nuclear Regulatory Commission.

    Dated: July 26, 1996.
James M. Taylor,
Executive Director for Operations.

    For the Occupational Safety and Health Administration.

    Dated: July 26, 1996.
Joseph A. Dear,
Assistant Secretary for Occupational Safety and Health.
[FR Doc. 96-19609 Filed 7-31-96; 8:45 am]
BILLING CODE 7590-01-P