Information Notice 1988-10, Memo of Understanding Between NRC and OSHA Relating to NRC-Licensed Facilities (53 FR 43950, October 31, 1988)
| ML080950134 | |
| Person / Time | |
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| Issue date: | 12/23/1988 |
| Revision: | 0 |
| From: | Cunningham R E NRC/NMSS/IMNS |
| To: | |
| References | |
| IN-88-100, NUDOCS 8812190319 | |
| Download: ML080950134 (18) | |
VUNITED STATESNUCLEAR REGULATORY COMMISSIONOFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDSWASHINGTON, D. C. 20555Decembeir 23, 1988NRC Information Notice No. 88-100: MEMORANDUM OF UNDERSTANDING BETWEEN.NRC ANDOSHA RELATING TO NRC-LICENSED FACILITIES(53 FR 43950, OCTOBER 31, 1988)
Addressees
- All major nuclear materials licensees and utilities holding construction permitsand operating licenses.
Purpose
- This notice is intended to inform all licensees of a new Memorandum ofUnderstanding (MOU) between NRC and the U.S. Occupational Safety andHealth Administration (OSHA) that provides guidelines for coordinationof interface activities between the two Agencies. It is expected thatlicensees will review this information, and distribute the notice toresponsible radiation safety and industrial hygiene staffs. However,suggestions contained in this information notice do not constitute newNRC requirements, and no written response is required.Discussion:Both NRC and OSHA have jurisdiction over occupational safety and health atNRC-licensed facilities. Because it is not always practical to sharplyidentify boundaries between the nuclear and radiological safety that NRCregulates and industrial safety that OSHA regulates, a coordinated inter-agency effort can ensure against gaps in the protection of workers, and atthe same time, avoid duplication of effort. The new MOU replaces an existingprocedure which outlined the NRC's and OSHA's interagency activities.Although NRC does not specifically examine industrial safety during inspec-tions of radiological and nuclear safety, NRC personnel may identify safetyconcerns within the area of OSHA responsibility, or may receive complaintsfrom an employee aboutOSHA-covered working conditions. In such instances,NRC will bring the matter to the attention of licensee management or monitorcorrective action when appropriate. If significant safety concerns areidentified, or if the licensee demonstrates a pattern of unresponsivenessto identified concerns, the NRC regional office will inform the appropr-iateOSHA regional office. Also, when known, NRC inspectors will encouragelicensees to report to OSHA accidents resulting in a fatality or multiplehospitalizations. It is not the intent of the Commission that NRC inspectorsperform the role of OSHA inspectors; however, they are to elevate OSHA safetyissues to the attention of OSHA Regional management when appropriate.8812190319 1 .IN 88-100December 23, 1988 Similarly, OSHA Regional Offices will inform the appropriate NRC RegionalOffice of matters which are in the purview of NRC, when these matters cometo their attention during Federal or State safety and health inspectionsor through complaints.The Memorandum of Understanding between NRC and OSHA is enclosed for yourinformation.No written response is required by this notice. If you have any questionsabout this information notice, please contact the appropriate NRC regionaloffice or this office.,,AihardE. unni amDirectorDivision of Indus riali andMedical Nuclear SafetyOffice of Nuclear MaterialSafety and SafeguardsTechnical Contacts: Glen L., Sjoblom, NMSS(301) 492-3430Frederick J. Hebdon, NRR(301) 492-1243
Attachments:
I. Memorandum of Understanding from-the FederalRegister Dated October 31, 19882. List of Recently Issued NRC Information Notices MEMORANDUM OF UNDERSTANDINGBETWEENTHE U.S. NUCLEAR REGULATORY COMMISSIONANDTHE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
PURPOSE
AND
BACKGROUND
1. The purpose of this Memorandum of Understanding between the U.S. NuclearRegulatory Commission (NRC) and the Occupational Safety and HealthAdmini stration (OSHA) is to delineate the general areas of responsibilityof each agency; to describe generally the efforts of the agencies toachieve worker protection at facilities licensed by the NRC; and to provideguidelines for coordination of interface activities between the two agencies.If NRC licensees observe OSHA's standards and regulations, this willhelp minimize workplace hazards.2. Both NRC and OSHA have jurisdiction over occupational safety and healthat NRC-licensed facilities. Because it is not always practical to sharplyidentify boundaries between the nuclear and radiological safety NRCregulates and the industrial safety OSHA regulates, a coordinated inter-agency effort can ensure against gaps in the protection of workers and atthe same time, avoid duplicat~ion of effort. This memorandum replaces anexisting procedure for interagency activities, "General Guidelines forInterface Activities between the NRC Regional Offices and the OSHA."
.- 2 -HAZARDS ASSOCIATED WITH NUCLEAR FACILITIES3. There are four kinds of hazards that may be associated with NRC-licensednuclear facilities:a. Radiation risk produced by radioactive materials;b. Chemical risk produced by radioactive materials;c. Plant conditions which affect the safety of radioactive materialsand thus present an increased radiation risk to workers. For example,these might produce a fire or an explosion, and thereby cause arelease of radioactive materials or an unsafe reactor condition; and,d. Plant conditions which result in an occupational risk, but do notaffect the safety of licensed radioactive materials. For example,there might be exposure to toxic nonradioactive materials and otherindustrial hazards in the workplace.Generally, NRC covers the first three hazards listed in paragraph 3 (a, b,and c), and OSHA covers the fourth hazard described in paragraph 3 (d). NRCand OSHA responsibilities and actions are described more fully in paragraphs4 and 5 below.NRC RESPONSIBILITIES4. NRC is responsible for licensing and regulating nuclear facilities andmaterials and for conducting research in support of the licensing andregulatory process, as mandated by the Atomic Energy Act of 1954, asamended; the Energy Reorganization Act of 1974, as amended; and theNuclear Nonproliferation Act of 1978; and in accordance with the
-3-National Environmental Policy Act of 1969, as amended, and otherapplicable statutes. These NRC responsibilities cover the firstthree nuclear facility hazards identified in paragraph 3 (a, b, and c).NRC does not have statutory authority for the fourth hazard described inparagraph 3 (d).NRC responsibilities include protecting public health and safety;protecting the environment; protecting and safeguarding materials andplants in the interest of national security; and assuring conformitywith antitrust laws for certain types of facilities, e.g., nuclear powerreactors. Agency functions are performed through: standards-setting and rulemaking; technical reviews and studies; conduct ofpublic hearings; issuance of authorizations, permits and licenses;inspection, investigation and enforcement; evaluation of operatingexperience; and confirmatory research.OSHA RESPONSIBILITIES5. OSHA is responsible for administering the requirements established underthe Occupational Safety and Health Act (OSH Act) (29 U.S.C. 651 et seq.),which was enacted in 1970. OSHA's authority to engage in the kinds ofactivities described below does not apply to those workplace safety andhealth conditions for which other Federal agencies exercise statutoryauthority to prescribe and enforce standards, rules or regulation Under the OSH Act, every employer has a general duty to furnish eachemployee with a place of employment that is free from recognized hazardsthat can cause death or serious physical harm and to comply with allOSHA standards, rules, and regulations.OSHA standards contain requirements designed to protect employees againstworkplace hazards. In general, safety standards are intended to protectagainst traumatic injury, while health standards are designed to addresspotential overexposure to toxic substances and harmful physical agents,and protect against illnesses which do not manifest themselves for manyyears after initial exposure.OSHA standards cover employee exposures from all radiation sources notregulated by NRC. Examples include x-ray equipment, accelerators,accelerator-produced materials, electron microscopes and betatrons, andnaturally occurring radioactive materials such as radium.It is estimated that the Act covers nearly 6 million workplaces employingmore than 80 million workers. Federal OSHA covers approximately three-fifths, or. four million, of these workplaces. States which operate OSHA-approved job safety and health programs, or "Plans," cover the remainder.OSHA State Plan States are encouraged, but not required, to delineate theirauthority for occupational safety and health at NRC-licensed facilitiesin the same manner as Federal OSH The OSHA areas of responsibility described in this memorandum are subjectto all applicable requirements and authorities of the OSH Act. However,the industrial safety record at NRC-licensed nuclear power plants is suchthat OSHA inspections at these facilities are conducted normally as a resultof accidents,. fatalities, referrals, or worker complaints.INTERFACE PROCEDURES:6. In recognition of the agencies' authorities and responsibilities enumeratedabove, the following procedures will be followed:Although NRC does not conduct inspections of industrial safety, in thecourse of inspections of radiological and nuclear safety, NRC personnelmay identify safety concerns within the area of OSHA responsibility ormay receive complaints from an employee about OSHA-covered workingconditions. In such instances, NRC will bring the matter to the attentionof licensee management. NRC inspectors are not to perform the role of OSHAinspectors; however, they are to elevate OSHA safety issues to the attentionof NRC Regional management when appropriate. If significant safety concernsare identified or if the licensee demonstrates a pattern of unresponsivenessto identified concerns, the NRC Regional Office will inform the appropriateOSHA Regional Office. In the case of complaints, NRC will withhold, from*the licensee, the identity of the employee. In addition, when known toNRC, NRC will encourage licensees to report to OSHA accidents resulting ina fatality or multiple hospitalization When such instances occur within OSHA State Plan States' jurisdiction, theOSHA Regional Office will refer the matter to the State for appropriateaction.7. OSHA Regional Offices will inform the appropriate NRC Regional Office ofmatters which are in the purview of NRC, when these come to their attentionduring Federal or State safety and health inspections or through complaints.The following are examples of matters that would be reported to the NRC:a. Lax security control or work practices that would affect nuclear orradiological health and safety.b. Improper posting of radiation areas.c. Licensee employee allegations of NRC license or regulation violations.8. The NRC and OSHA need not normally conduct joint inspections at NRC-licensed facilities. However, under certain conditions, such as investi-gations or inspections following accidents or resulting from reportedactivities as discussed in items 6 and 7 above, it may be mutually agreedon a case-by-case basis that joint investigations are in the public interest.9. The chemical processing of nuclear materials at some NRC-licensed fuel andmaterials facilities presents chemical and nuclear operational safetyhazards which can best be evaluated by joint NRC-OSHA team assessments.Each agency will make its best efforts to support such assessments at about20 facilities once every five years. Of these facilities, about one-thirdare in the OSHA Plan States. OSHA will also assist in promoting suchparticipation by State personnel in OSHA Plan State . Based upon reports of injury or complaints at nuclear power plant sites,OSHA will provide NRC with information on those sites where increasedmanagement attention to worker safety is needed. The NRC will bringsuch information indicating significant breakdown in worker safety to theattention of licensee management and monitor corrective actions. Thiswill not interfere with OSHA authority and responsibility to investigateindustrial accidents and worker complaints.11. Power reactor sites are inspected by NRC Region-based and ResidentInspectors. Personnel fromNRC Regional Offices routinely conduct inspec-tions at most fuel and materials licensed facilities. In order to enhancethe ability of NRC personnel to identify safety matters under OSHA purviewduring nuclear and radiological safety inspections, OSHA will provide NRC*Regional personnel with basic chemical and industrial safety training andindoctrination in OSHA safety standards, consistent with ongoing OSHA train-ing programs. To enhance the ability of OSHA and State Plan personnelto effectively participate in the Operational Safety Team Assessments, NRCwill provide training in basic radiation safety requirements, consistentwith ongoing NRC training programs. Details of such training will be asmutually agreed by the NRC Technical Training Center and the OSHA NationalTraining Institute.12. Resolution of policy issues concerning agency jurisdiction and operationalrelations will be coordinated by the NRC Deputy Executive Director forOperations, and by the OSHA Director of Policy. Appropriate Headquarterspoints of contact will be establishe . Resolution of issues concerning inspection and enforcement activitiesinvolving. both NRC and OSHA jurisdiction at NRC-licensed facilities willbe handled between NRC's Office of Enforcement and OSHA's Directorate ofCompliance Programs. Each NRC and OSHA Regional Office will designatepoints of contact for carrying out interface activities.FOR THE NUCLEAR REGULATORY COMMISSIONFOR THE OCCUPATIONAL SAFETY ANDHEALTH ADMINISTRATIONJnsAs. C/Atsista nt SecretaryAfttor SteIlo, }Jr.. ,/ ' -or OperationsOctober 21, 1988, UNITED STATESNUCLEAR REGULATORY COMMISSIONOffe of Govemomietl and Public Affairs..Wlngtan, D.C. 20655No.88-148 FOR IMMEDIATE RELEASE:Tel. 301/492-0240 (Friday,..October 21,,1988).OSHA, NUCLEAR REGULATORY COMMISSIOR AGREE ON COORDINATION OF EFFORTSTOWARD WORKER SAFETY IN NUCLEAR FACILITIESThe Nuclear Regulatory Commi'ssion and the Occupational Safety -and HealthAdministration (OSHA)"in the U.S. Department of Labor have agreed o,.a,-..coordinated effort toward worker safety in nuclear facilities licensed by theNRC.The agreement spells out the responsibilities of the two-agencies inprotecting workers 'at NRC-licensed facilities,"ptovide sguidel!r1es-for.'improved coqrdination, and atso.commits the two agencies to periodic joidtevaluation of operational safety 'hazards involved in c 'hemical prrocessing ofnuclear material at some facilities.The agreement is contained in a memorandum of understanding signed forthe NRC by its Executive Director for Operations, Victor Stello Jr.,*and forOSHA by Assistant Secretary of Labor for Occupational Safety and Health,John A. Pendergrass.It is expected.to benefit many thousands of Workers in several thousandNRC-licensed facilities such as- nuclear power.plants, plants manufacturingnuclear fuel for. nuclear power reactors, radiopharma.ceutical manufacturers,hospitals and small plants and laboratories licensed by the NRC to use radio-active materials..The accord also replaces existing guidelines which had been used tocoordinate activities of the two agencies.Discussions which led to today's agreement were prompted by concernsabout jurisdiction of the two agencies following a 1986 fatal accident atSequoyah Fuels Corp.'s uranium conversion plant near Gore, Oklahoma, whichinvolved'release of a substance that was both chemically toxic and radioactive.One purpose of the agreement is to clarify each agency's jurisdictionalresponsibilities in NRC-licensed facilities. OSHA will cover plant conditionswhich result in an occupational risk, but do not affect the safety of licensedradioactive materials. For example, OSHA will protect against exposure totox~icnonradioactivematerials-and other industrial hazards :in the workplace.The NRC will deal with radiation and chemical risks resulting fromradioactive materials, and plant conditions which affect the safety of radio-active materials and thus present an increased radiation risk to workers. *Forexample, the NRC qwould seek to prevent a fire or explosion which could lead torelease of radioactive materials or an unsafe reactor conditio r.2Under the agreement, the NRC will advise the licensee management and OSHAwhen industrial safety concerns are identified during radiological and nuclearsafety inspections or when complaints are received from workers about OSHA-covered working conditions. In the case of complaints, NRC will withhold theidentify of the employee from the licensee. NRC also will encourage licenseesto report to OSHA accidents that result in a fatality or multiplehospitalizations.In turn, OSHA will inform the NRC when matters involving radiological ornuclear safety are revealed in OSHA inspections or through complaints.Examples are matters involving lax security or work practices that wouldaffect nuclear or radiological health and safety, improper posting of radia-tion areas, or employee charges that the NRC license and/or regulations werebeing violated.The two agencies agreed that the chemical processing of nuclear materialsat some NRC-licensed facilities presents safety hazards which can best beevaluated by joint NRC-OSHA teams. Each agency will make its best efforts tosupport such assessments at about 20 facilities once every five years. Aboutone-third of these facilities are in states with OSHA-approved occupationalsafety and health programs. OSHA will assist in promoting participation bystate personnel in those states.OSHA will provide the NRC with information, based on reports of injuriesor complaints, about nuclear power plant sites where increased managementattention to worker safety is needed.OSHA also will give training in basic chemical and industrial safety toNRC inspection personnel so that they will be able to better identify mattersof concern to OSHA in radiological and nuclear inspections. The NRC willprovide training in radiation safety to those OSHA and state program personnelwho may participate in joint evaluation of safety hazards in some facilities.NOTE TO EDITORS: This announcement also is being issued by the OccupationalSafety and Health Administratio MEMORANDUM OF UNDERSTANDING ..-BETWEENTHE U14. .NUCLEAR. RGUIA"40AY COMI4I'.SI--THE OCCUPATIONAL SAFETY"AND HEALTADM1.NISTRATfON;"*
PURPOSE
AND
BACKGROUND
.- .,.... -.. T. .1. The purpose of this Memorandum of Understanding' between"'the U.S. NuclearRegulatory Commission (NRC) and the Occupational Safety and Health"Administration (OSHA) is to delineate the general areas of responsibility..of each agency; to describe generally the efforts of the ag'encies toachieve worker protectio *at faci~lities licensed by. the NRC; and to' provideguidelines for coordination of interface activities between the two agencies.If NRC licensees observe OSHA's standards and regulations, this willhelp minimize workplace hazards.2. Both NRC and OSHA have jurisdiction over occulationai safety. and thealthat NRC-licensed facilities,.. Because it is not always practical to s-harolyidentify boundaries between the nuclear and radiological safety NRCregulates and the industrial safety OSHA regulates, a coordinated inter-agency effort can ensure against gaps in the protection, of workers and atthe same time, avoid duplication of effort. This- memorandum' replaces anexisting procedure for interagency activities,: "Ge'neral Guidelines'forInterface Activities between the NRC Regional Offices and the OSHA.:"HAZARDS ASSOCIATED WITH NUCLEAR FACILITIES3. There are four kinds.of hazards that may be associated with NRC-licensednuclear facilities:a. Radiation risk produced by radioactive materials;b. Chemical risk produced by radioactive material s-;c. Plant conditions.which aff c~t.. the. .,radioactiVe. ma.terials.and thus present an. increased' radiaticoi For' example,these might produce, a' fire or an explosion, and thereby cause a .-release of radioactive materials or an unsafe reactor condition; and,d. Plant conditions which result in an occupational risk, but do notaffect, the.safety,,of licensed radioactive mate'rials. -For example,there might be exposure to toxic nonradioactive materials and otherindustrial hazards in the workplace.Generally, NRC covers the first three hazards listed in:paragraph 3 (a, b,and c), and OSHA covers the fourth hdzard described in paragraph 3 (d). NRCand OSHA responsibilities.and actions are described more fully :in paragraphs4 and 5 below.NRC RESPONSIBILITIES4. NRC is responsible for licensing and regulating nuclear facilities andmaterials and for conducting research in support of the. licensing andregulatory process, as mandated by the Atomic Energy Act of 1954, asamended; the Energy Reorganization Act.of 1974, as amended; and theNuclear Nonproliferation Act of 1978; and in accordance with th National Environmental Policy Act of 1969, as amended, and otherapplicable statutes. These NRC responsibilities cover the firstthree nuclear facility hazards identified in paragraph 3 (a, b, and c).NRC does not have statutory authority for the fourth hazard described inparagraph 3 (d).NRC, responsibilities. include protecting public health and safety;-protecting the environment; protecting and safeguarding materials andplants in the: interest of national securityI and assut1ng conformitywith antitrust laws for certain types of facilities, e.g., nuclear powerreactors. Agency functions are performed through: standards-setting and rulemaking; technical-reviews and studies; conduct ofpublic hearings; issuance of authorizations, permits and licenses;inspection, investigation and enforcement; evaluation of operatingexperience; and cQofirmatory research.OSHA. RESPONSIBILITIES5. OSHA is responsible for administering the requirements established under.the Occupational Safety and Health Act (OSH Act) (29 U.S.C. 651 et 1q.),which was enacted in..1970. OSHA's authority to engag~e in 'the kinds oactivities described below does not apply to those workplace safety 'andhealth conditions for which other Federal agencies exercise statutoryauthority to prescribe dnd enforce standards, rules or regulations.Under the OSH Act, every employer. has a generalrduty to furnish eachemployee with a p-lace of employment that is free from recognized hazardsthat can cause death or serious physical harm and to comply with'allOSHA standards, rules, and regulations.OSHA standards contain requirements designed to protect employees againstworkplace hazards. In general, safety standards are intended to protectagainst traumatic injury, while health standards a're designed to address'potential overexposure to toxic substances and harmful physical agents,and protect against illnesses which do not manife.st themselves for manyyears after initial.exposure.OSHA standards cover employee exposures from all radiation sources not,regulated by NRC. Examples include x-ray equipment., accelerators,accelerator-produced materials, electron microscopes and betatrons, andnatural.ly occurring radioactive materials such as radium.It is estimated that the Act covers nearly 6 million workplaces employingmore than 80 million workers. Federal OSHA covers approximately three-fifths, or four million, of these workplaces. States which operate OSHA-approved job safety and health programs, or "Plans," cover the remainder.OSHA State Plan States are encouraged, but not required, to delineate theirauthority for occupational safety and health at NRC-licensed facilitiesin the same manner as Federal OSHA".The OSHA areas of responsibility described in this memorandum are subjectto all applicable -requirements and authorities of the OSH Act. However,the industrial safety record at NRC-licensed nuclear power plants is suchthat OSHA inspections at these facilities are conducted normally'as a resultof accidents, fatalities, referrals, or worker complaint INTERFACE PROCEDURES:6. In recognition of the agencies' authorities and responsibilities enumeratedabove, the following procedures wil.l be, followed:..Although NRC does not conduct inspections of industrial safety, in thecourse of inspections of radiological and nuclear safety, NRC personnelmay identify safety concerns within the area of OSHA responsibility ormay receive complaints from an employee about OSHA-covered workingconditionrs. In such instances, NRC will'bring'the matter to the attentionof licensee management. NRC inspectors are not to perform the role of OSHAinspectors; however, they areto elevate OSHA safety issues to the attentionof NRC Regional management when'appropriate. 'If significant safety concernsare identified or if the licensee demonstrates a pattern of unresponsivenessto identified concerns, the NRC Regional Office will inform the appropriateOSHA Regional Office. In the case of complaints, NRC will withhold, fromthe licensee, the identity of the employee. In addition, when known toNRC, NRC will encourage licensees, to report to OSHA accidents resulting ina fatality or mu'ltiple hospitalizations.When such instances occur within OSHA State Plan States' jurisdiction, theOSHA Regional Office will refer the matter.to the state for appropriateaction.7. OSHA Regiohal Offices will inform'the appropriate NRC Regional Office ofmatters which are in the purview of NRC, when these come to their attentionduring Federal or State safety and.health inspections or through complaints.The following are examples of matters that would be reported to the NRC:a. Lax security control or work practices that would affect nuclear orradiological health and safety.b. Improper posting of radiation areas.c. Licensee employee allegations.of URC license or regulation violations.,8. The NRC and OSHA'need not normally conduct joint inspections at NRC-licensed facilities.' However',"under certain conditions, such as investi-gations or inspections followinq accidents or resulting from reported-activities as discussed,'in-items 6 and 7 above, it may be mutually agreedon a ca~e-.by-case ta.is .that joint investigations are in the public interest.9. The chemiical processing of nuclear materia1s at some NRC-licensed fuel andmaterials'facilities presents chemical and nuclear op io,,nAl safetyhazards which can best be evaluated b Each agency will make its best efforts t support such assessments at about20 facilit'ies once .eVery.fiye.years. Of.these facilities, about one-thirdare in the OSHAPlan States.' OSHA will also assist in promoting suchparticipation by State personnel in OSHA Plan States.10. Based upon reports of injury or complaints at nuclear power plant sites,OSHA will provide NRC with information on those sites where increasedmanagement-attention to worker'safe'ty isneeded. The'NRC wiII bringsuch information indicating. significant breakdown in worker safety to thedttention of licensee management and monitor corrective actions. Thiswillnot interfere with'OSHA'authority and responsibility'to investigateindustrial'accidents and worker complaint . Power reactor sites are inspected by NRC Region-based and ResidentInspectors. Personnel from NRC Regional Offices routinely.conduct inspec-tions at most-fuel and materials licensed facilities. In order to enhancethe ability of NRC personnel to identify safety matters under OSHA purviewduring nuclear and radiological safety inspections, OSHA will provide NRCRegional personnel with basic chemical and industrial safety training andindoctrination in OSHA safety standards, consistent with-ongoing OSHA train-ing programs. To enhance the ability of OSHA:and State Plan personnelto effectively participate in the Operational Safety Team Assessments,-NRCwill provide training in basic radfction safety requirements, consistentwith ongoing NRC training programs. Details of such trainting will be asmutually agreed by the NRC Techni cal Training Center-and the OSHA NationalTraining Institute.12. Resolution of policy issues concerning agency jurisdiction and operationalrelations will be coordinated by the NRC Deputy Executive Director forOperations, and by the OSHA Director of Policy. Appropriate Headquarterspoints of contact will be established. ..-.13. Resolution of issues concerning inspection and enforcement activities -involving both NRC and OSHA jurisdiction at NRC-licensed facilities willbe handled between NRC's Office of Enforcement and OSHA's DirectQrate ofCompliance Programs. Each NRC and OSHAWRegional Office will; designatepoints of contact for carrying out interface activities.FOR THE NUCLEAR REGULATORY COMMISSION FOR THE OCCUPATIONAL SAFETY ANDHEALTH ADMINISTRATIONct J r. Opertin1hnA PendergrassExecutive I6ire~'twj~for Operations rstant SecretaryOctober 21, 1988 MEMORANDA OF UNDERSTANDINGOffice of Personnel Management-euidelines set forth the following asw"ured components of an Employeeistance Program: (1) Employeeiseling and referral; (2) education.-J training on drug-related issues: (3)supervisory consultation regardingtL oubled employees: and (4) supervisorytraining to assist managers inmaintaining a drug-free workplace.I. Scope of WorkThe NRC will assist the Board inestablishing and maintaining anFinployee Assistance Pr)4, ram, byoffering the iollowing services:(a) Etduchtjtio and Tivjini;k' for lBoardAloJjgers and Sull.-vison. tu familiarizethem with the signs and symptoms ofalcohol and drug abuse, and to defineand clarify their role and responsibilitiesthey relate to the Drug- free FederalWorkplace Rogram.The NRC schedules supervisorytraining on a regular basis and willprovide spaces for Board employees inthese cures. If, however, the Boardwishes to provide training sooner and/or more extensively than can beaccommodated by NRC's schedule. NRCwill provide the names of possiblesources for training which can meet theBoard's needs.(b) Informal Consultation. The NRC'srtployee Assistance Program andor Relations staffs will be available.ae Board's General Manager andutner designated staff members to sharetheir knowledge and experiences inmatters dealing with troubledemployees, including drug testing.disciplinary action, confidentialityissues, the rehabilitation process, andreintegration of rehabilitated employeesinto the workplace. NRC staff will not,however, provide direct counseling toBoard employees or directly adviseBoard superviors and managers onspecific cases.(c) Referral Sources. The NRC willassist the Board with other EAPfunctions. i.e., individual counseling,referral, supervisory consultation, andemployee education, by providing thenames of EAP firms in the Washingtonmetropolitan area who can providethose services to meet the uniquerequirements of the Board.I1. Period of PerformanceThe period of performance shallcommence upon signature by bothparties and shall continue uninterruptedat the pleasure of either party. Thisagreement may be modified with theconsent of both parties. Either party,y terminate the agreement byviding 60 days written notice to the,er party.1Il. Applicable GuidanceThe NRC and the Board will followthe guidance and directives contained inNRC Manual chapter 4161 and the NRCDrug Testing Plan (NUREG/BR-.0134),section IV.IV. FundingNRC training and informal advice willbe provided to the Board at no cost.V. Point of ContactThe organizational points of contactNRC: Patricia Kaplan. (301) 492--49.I)NFSH: Janet Burke, (202) 376-50813.Accepted:By:John T. Conway,Chairmon. Nuclear Facilities SafetyBoard.Dated: November 28. 1990.By:James M. Taylor,Executive Director for Operations, U.S.Nuclear Regulatory Commission.Dated: November 2fl, 1990.55 FR 51973Published 12/18/90F~nal Subagreement Pertaining toState Resident Engineers BetweenNRC and the State of IllinoisAGENCY: Nuclear RegulatoryCommission.ACTION: Publication of SubagreementNo. 3 between NRC and the State ofIllinois.SUMMARY: Section 274i of the AtomicEnergy Act of 1954, as amended, allowsthe Nuclear Regulatory Commission(NRC or Commission) to enter into anagreement with a State "to performinspections or other functions on acooperative basis as the Commissiondeems appropriate." This section 274iagreement typically in the form of aMemorandum of Understanding (MOU),differs from an agreement between NRCand a State under the "AgreementState" program; the latter isaccomplished only by entering into anagreement under section 274b. of theAtomic Energy Act. A State can enterinto a section 274i MOU whether or notit has a section 274b agreement.In April of 1984, NRC and the State ofIllinois signed an "umbrella" MOU,providing principles of cooperatiunbetween the State and NRC in areas ofconcern to both.In June of 1984, NRC and the State ofIllinois signed Subagreement No. 1which provided the basis for mutuallyagreeable procedures whereby the Statemay perform inspection functions forand on behalf of the Commission atcertain reactor and materials licensees'facilities which generate low-levelradioactive waste.On June 7, 1990, following signatureby NRC and the Illinois Department ofMU-72Nuclear Safety, NRC publishedSubagreement No. 2 (55 FR 23317)regarding ASME Code inspections withthe State of Illinois.In Subagreement No. 3, NRC and theIllinois Department of Nuclear Safety(IDNS) seek to allow Illinois ResidentEngineers to participate in NRCinspections at nuclear power plunts inIllinois. This Subagreement is one of the.first to be signed under the NRC's policyregarding "Cooperation With States atCommercial Nuclear Power Plants andOther Nuclear Production or UtilizationFacilities" (54 FR 7530; 2/22/89). Asstated in the polity, "The NRC willconsider State proposals to enter intoinstruments of cooperation for Stateparticipation in NRC inspectionactivities when these programs haveprovisions to ensure close cooperationwith NRC."Analysis: On March 27, 1990, theproposed Subagreement Pertaining toState Resident Engineers BetweenNRCand the State of Illinois was publishedin the Federal Register for publiccomment, at 55 FR 11275. One set ofcomments was received fromCommonwealth Edison Co. (CECo). Thecomments are addressed individually,as follows:Com.ent. CECo should be allowed toexpress its views formally on whether aparticular meeting or inspection willinvolve sensitive matters. SectionsVI.C.8 and VI. D.3 establish the NRC'sdiscretion to determine whether theSenior Resident Engineer may attendcertain meetings with CECo orparticipate in certain inspections of itsactivities. One factor in the exercise ofthat discretion is the potentiallysensitive nature of the subject, meetingor inspection. To ensure that thepotential for sensitivity is fullyappreciated, CECo should be given aformal opportunity to express its viewson whether a particular meeting orinspection will. involve sensitivematters..Response: The Subagreementprovides that the State recognize thatthdre may be occasions when, becauseof the sensitive nature of certaininspections and meetings, it will benecessary for the NRC, at its discretion,to conduct such activities privately andseparately. The Subagreement does notpreclude the license fromcummunicating its opinion on thesematters to the NRC.Correction to Section VI.C.13--CECostates that the last sentence of sectionVI.C.13. should read, "NRC will forwardthe report to the licenses with a coverletter discussing the issues, if any, thatthe NRC believes warrant action by thelicensee." The words "the report to thelicensee with" were inadvertentlyomitted from the Federal RegisterNotice. The comment is accepted, andthe text of the Subagreement has beenchanged.September 30, 1993 (reset)
Mr.MUt1AN'LA ur UN'Ur-Mb I AI'ILINUCommen,: NRC, IDNS and CECoshould work together to agree on whichIDNS issues warrant CECo action.Section VI.C.13 would require IDNS tosubmit all written communicationsconcerning CECo inspection activity tothe NRC. The NRC will review thosecommunications and inform CECo as towhich issues the NRC believes warrantaction by CECo. CECo believes that amore efficient process would result ifthe NRC, IDNS and CECo would worktogether to agree on which IDNS issueswarranted CECo action..Response: The Subagreementspecifically indicates that Stateactivities will be performed inaccordance with Federal standards andrequirements and NRC practices. Alsoconsistent with NRC's Policy Statementon Cooperation With States atCommercial Nuclear Power Plants andOther Production or UtilizationFacilities, the Subagreement specificallystates that nothing in this agreementconfers upon the State or the StateResident Engineer authority to: (3)Interpret or modify NRC regulations andNRC requirements imposed on thelicensee; (2) take enforcement actions;(3) issue confirmatory letters; (4) amend,modify, or revoke a license issued byNRC; and (5) direct or recommendnuclear power plant employees to takeor not to take any action. Authority forall such actions is reserved exclusivelyto the NRC. Clearly there is no optionfor a collaborative process ininterpreting or imposing NRCrequirements on a licensee.Comment: Differences in Freedom ofInformation Acts. Sections VI.D.5 andVI.D.6 imply that IDNS will apply theIllinois Freedom of Information Act(IFOIA) to the fullest extent possible toprotect sensitive and proprietaryiiformation just as the NRC applies theFederal Freedom of Information Act(FOIA). It is not clear that IFOIAprovides the same level of protection asFOIA. There are far fewer judicialinterpretations of IFOIA than of FOIA;Illinois judges may take a broader viewof the public's right to know than havefederal judges. Therefore, greaterprotection would be provided if IDNShad unlimited access to informationcovered by the Subagreement but didnot physically retain any informationwhich IFOIA could not clearly protectfrom unwarranted public disclosure.Response: In practice, CECo mustidentify any proprietary or sensitiveinformation submitted to the NRC whichit wishes to have withheld from publicdisclosure (10 CFR 2.790(b)(1)). Anyinformation so submitted anddetermined to be protected from publicdisclosure under the criteria in 10 CFR2.790 is accorded protection fromdisclosure to the full extent of FOIA andNRC regulations. If such information isshared with the State under IllinoisSubagreement No. 3, it should still beprotected from disclosure to the samee>tent as it: would'be at the NRC:Therefore. if the IFOIA provided: lessprotection than FOIA,. the NRC:wouldbe concerned regarding a method ofproviding- am equal level of'protectionrfor the documents provided. to the. State'under this Subagreement.However. CECo does not specificallycontend that IFOIA provides lessprotection to sensitive or proprietaryinformation than FOIA. Indeed,. a facial:comparison shows that IFOIA seems. toprovide: a similar-level of protection- to:that afforded by-FOIA. Additionally, iniparagraph.VLID;. of proposed IllinoisSubagreement No. 3, the State agrees toconform its practices regardinginformation disclosure to those of theNRC. In paragraph VI.D;6., the State andNRC agree to consult with each otherWefore releasing sensitive or proprietaryinformation related. to this:Suhagreement. IFOIA and these.1-rovisions would appear likely toprovide protection. At this time it isimpossible to predict with completeconfidence how. Illinois will interpretand implement this Subagreement andfl;e relevant- IFOIA provisions. However,the NRC-State consultations pursuant to,paragraph VLD6.. should:insure- that the.NRC is aware. ofillinois practices and:procedures in releasing information. Ifadditional protective measures arer.equired, they canbe tailored to addressthe specific requirements of thesituation..Cornment Consultation. SectionVI.D.6 also would require IDNS and theNRC;to consult with: each other beforeireleasing sensitive or proprietary.information, related to thisSubagreement. Toiensure that thesensitivity of particular information, is,fully, appreciated, CECo should have an,opportunity to participate in theconsultation before a final decision torelease information is, made; Moreover,.any disagreements, over release: should;be resolved in: accordance, with thedispute resolution provisions set forth in!-,oction VIII.R.,sponse: The release of sensitive orproprietary information in this situationis governed by- the FOIA, NRC related;regulations,, and: IFOIA. If CECo isconcerned'about the release of sensiti.ve:or proprietary information, CECo:muatfirst be certain that any suchinformation is submitted pursuant to theregulations contained in 10 CYR 2:790.This iiformnation, if it has been properlysubmitted. to. the NRC and determined, tobe properly withheld from disclosure;should be. protected by operation ofthese statutes and.regulations,. and: alsoby the: consultation, process. between the'Stateand NRC(pursuant toparagraphVI.Dfl.B. CECo's participation in theprocess would: be unworkable. andinconsistent with the NRC'sand theState's; conduct- of theiir own.procedures,which are- governed by: the applicablestatutes and'regulations.Comment' Regul'atory Confusion.CECo.expressed concern that theaddition of another regulatory observermay create confusion andadministrati.vie.burdena far plant;management.Response,-Both the Subagreement andithe Cornmiusicies Poliny.Statemmit one:Cooperation With Stales reflect. thatState activities must be conducted inaccordance with Federal standards and-requirements and;N`RC practices, withno undue burden on the NRC or itslicensees.Comment:. Recommendatibn toMonitor Implementation. CECo stronglyrecommends. that NRC monitorimplementaLion, of the Subagreement.Response: The NRC has provided anumber of controlsin: the Subagreementso that it: can.be confident in the State.Resident. Inspector's ability to perfarm.inspections, ii aware! of and has -accounted for-the inspections planned.by the State, and communicates: with. thelicensee on al' follow-up actions andienforcement. It is intended that therewill be communication between NRCand State staff members one day-to-dayactivities. Further, the Subagreementrequires a formal review, not less than.six months after the effecti've date', to beperfbrmed by-the NRC. to evaluateimplementation of the Subagreementand resolve any problems. identifi ed. Inaddition, periodic reviewsare called forthereafter.Conclusion: After carefulconsideration of the commentssubmitted, the Commission has.determined to approve SubagreementNo; 3 Pertaining to State-ResidentEngineers Between the U*S. NuclearRegulatory Commission and the State ofIllinois. Certain-minor editorial changesto the text of the Subagreement havebeen. made, including the charge tosection VLC.13 discussed in. the NRCresponse to comments..FOR FURTHE INFORMATION
CONTACT
- .Frederick C; Combs,. Assistant Directurof State, Local and Indian Relations,State Programs, Office of Governmentaland'Public Affairs, U.S. NuclearRegulatory Commission, Washington;DC'20555; telephone.[391) 492-03"25;Dated at.Rockvilte.A.?c this.lath day (f.December 1990.Fr" the NuclearRegulatoryCaommissiumnCarlton. Kammerer,.Director, State Programs, Office of"Governmental and Public Affairs.MU-73September 30, 1993 (reset)