View source for Information Notice 1988-10, Memo of Understanding Between NRC and OSHA Relating to NRC-Licensed Facilities (53 Fr 43950, October 31, 1988)

{{Adams
| number = ML080950134
| issue date = 12/23/1988
| title = Memo of Understanding Between NRC and OSHA Relating to NRC-Licensed Facilities (53 Fr 43950, October 31, 1988)
| author name = Cunningham R
| author affiliation = NRC/NMSS/IMNS
| addressee name = 
| addressee affiliation = 
| docket = 
| license number = 
| contact person = 
| document report number = IN-88-100, NUDOCS 8812190319
| document type = NRC Information Notice
| page count = 18
}}
{{#Wiki_filter:V

UNITED STATES

NUCLEAR REGULATORY COMMISSION

OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS

WASHINGTON, D. C. 20555 Decembeir 23, 1988 NRC Information Notice No. 88-100:   MEMORANDUM OF UNDERSTANDING BETWEEN.NRC AND

OSHA RELATING TO NRC-LICENSED FACILITIES

(53 FR 43950, OCTOBER 31, 1988)

==Addressees==
:
All major nuclear materials licensees and utilities holding construction permits

and operating licenses.

==Purpose==
:
This notice is intended to inform all licensees of a new Memorandum of

Understanding (MOU) between NRC and the U.S. Occupational Safety and

Health Administration (OSHA) that provides guidelines for coordination

of interface activities between the two Agencies.    It is expected that

licensees will review this information, and distribute the notice to

responsible radiation safety and industrial hygiene staffs. However, suggestions contained in this information notice do not constitute new

NRC requirements, and no written response is required.

Discussion:
Both NRC and OSHA have jurisdiction over occupational safety and health at

NRC-licensed facilities. Because it is not always practical to sharply

identify boundaries between the nuclear and radiological safety that NRC

regulates and industrial safety that OSHA regulates, a coordinated inter- agency effort can ensure against gaps in the protection of workers, and at

the same time, avoid duplication of effort. The new MOU replaces an existing

procedure 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 safety

concerns within the area of OSHA responsibility, or may receive complaints

from an employee aboutOSHA-covered working conditions.      In such instances, NRC will bring the matter to the attention of licensee management or monitor

corrective action when appropriate.    If significant safety concerns are

identified, or if the licensee demonstrates a pattern of unresponsiveness

to identified concerns, the NRC regional office will inform the appropr-iate

OSHA regional office. Also, when known, NRC inspectors will encourage

licensees to report to OSHA accidents resulting in a fatality or multiple

hospitalizations. It is not the intent of the Commission that NRC inspectors

perform the role of OSHA inspectors; however, they are to elevate OSHA safety

issues to the attention of OSHA Regional management when appropriate.

8812190319

1   .IN                                                             88-100
                                                                December 23, 1988 Similarly, OSHA Regional Offices will inform the appropriate NRC Regional

Office of matters which are in the purview of NRC, when these matters come

to their attention during Federal or State safety and health inspections

or through complaints.

The Memorandum of Understanding between NRC and OSHA is enclosed for your

information.

No written response is required by this notice. If you have any questions

about this information notice, please contact the appropriate NRC regional

office or this office.

unni

,,AihardE.    amDirector

Division of Indus riali and

Medical Nuclear Safety

Office of Nuclear Material

Safety and Safeguards

Technical Contacts:   Glen L., Sjoblom, NMSS

(301) 492-3430
                       Frederick J. Hebdon, NRR

(301) 492-1243 Attachments:
I. Memorandum of Understanding from-the Federal

Register Dated October 31, 1988
2. List of Recently Issued NRC Information Notices

MEMORANDUM OF UNDERSTANDING

BETWEEN

THE U.S. NUCLEAR REGULATORY COMMISSION

AND

THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

==PURPOSE==
AND

==BACKGROUND==
1.   The purpose of this Memorandum of Understanding between the U.S. Nuclear

Regulatory Commission (NRC)   and the Occupational Safety and Health

Admini stration (OSHA)  is to delineate the general areas of responsibility

of each agency; to describe generally the efforts of the agencies to

achieve worker protection at facilities licensed by the NRC; and to provide

guidelines for coordination of interface activities between the two agencies.

If NRC licensees observe OSHA's standards and regulations,   this will

help minimize workplace hazards.

2.   Both NRC and OSHA have jurisdiction over occupational safety and health

at NRC-licensed facilities.    Because it is not always practical to sharply

identify boundaries between the nuclear and radiological safety NRC

regulates and the industrial safety OSHA regulates, a coordinated inter- agency effort can ensure against gaps in the protection of workers and at

the same time, avoid duplicat~ion of effort.   This memorandum replaces an

existing procedure for interagency activities, "General Guidelines for

Interface Activities between the NRC Regional Offices and the OSHA."

.- 2 -

===HAZARDS ASSOCIATED WITH NUCLEAR FACILITIES===
3.  There are four kinds of hazards that may be associated with NRC-licensed

nuclear facilities:
     a.   Radiation risk produced by radioactive materials;
     b.   Chemical risk produced by radioactive materials;
     c.   Plant conditions which affect the safety of radioactive materials

and thus present an increased radiation risk to workers.   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 not

affect the safety of licensed radioactive materials.  For example, there might be exposure to toxic nonradioactive materials and other

industrial 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). NRC

and OSHA responsibilities and actions are described more fully in paragraphs

4 and 5 below.

===NRC RESPONSIBILITIES===
4.   NRC is responsible for licensing and regulating nuclear facilities and

materials and for conducting research in support of the licensing and

regulatory process, as mandated by the Atomic Energy Act of 1954, as

amended; the Energy Reorganization Act of 1974, as amended; and the

Nuclear Nonproliferation Act of 1978; and in accordance with the

-3- National Environmental Policy Act of 1969, as amended, and other

applicable statutes.   These NRC responsibilities cover the first

three nuclear facility hazards identified in paragraph 3 (a,   b, and c).

NRC does not have statutory authority for the fourth hazard described in

paragraph 3 (d).

NRC responsibilities include protecting public health and safety;
     protecting the environment; protecting and safeguarding materials and

plants in the interest of national security; and assuring conformity

with antitrust laws for certain types of facilities, e.g.,   nuclear power

reactors.   Agency functions are performed through:   standards- setting and rulemaking; technical reviews and studies; conduct of

public hearings; issuance of authorizations, permits and licenses;
      inspection, investigation and enforcement; evaluation of operating

experience; and confirmatory research.

===OSHA RESPONSIBILITIES===
5.   OSHA is responsible for administering the requirements established under

the 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 of

activities described below does not apply to those workplace safety and

health conditions for which other Federal agencies exercise statutory

authority to prescribe and enforce standards,  rules or regulations.

-4- Under the OSH Act, every employer has 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.    In general, safety standards are intended to protect

against traumatic injury, while health standards are designed to address

potential overexposure to toxic substances and harmful physical agents, and protect against illnesses which do not manifest themselves for many

years 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, and

naturally occurring radioactive materials such as radium.

It is estimated that the Act covers nearly 6 million workplaces employing

more 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 their

authority for occupational safety and health at NRC-licensed facilities

in the same manner as Federal OSHA.

-5- The OSHA areas of responsibility described in this memorandum are subject

to all applicable requirements and authorities of the OSH Act.    However, the industrial safety record at NRC-licensed nuclear power plants is such

that OSHA inspections at these facilities are conducted normally as a result

of accidents,. fatalities, referrals, or worker complaints.

INTERFACE PROCEDURES:
6.    In recognition of the agencies'   authorities and responsibilities enumerated

above, the following procedures will be followed:
      Although NRC does not conduct inspections of industrial safety,   in the

course of inspections of radiological and nuclear safety, NRC personnel

may identify safety concerns within the area of OSHA responsibility or

may receive complaints from an employee about OSHA-covered working

conditions.   In such instances, NRC will bring the matter to the attention

of licensee management.  NRC inspectors are not to perform the role of OSHA

inspectors; however, they are to elevate OSHA safety issues to the attention

of NRC Regional management when appropriate.    If significant safety concerns

are identified or if the licensee demonstrates a pattern of unresponsiveness

to identified concerns, the NRC Regional Office will inform the appropriate

OSHA Regional Office.     In the case of complaints, NRC will withhold,  from

*the licensee, the identity of the employee.    In addition, when known to

NRC, NRC will encourage licensees to report to OSHA accidents resulting in

a fatality or multiple hospitalizations.

-6- When such instances occur within OSHA State Plan States' jurisdiction, the

OSHA Regional Office will refer the matter to the State for appropriate

action.

7. OSHA Regional Offices will inform the appropriate NRC Regional Office of

matters which are in the purview of NRC, when these come to their attention

during 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 or

radiological 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 reported

activities as discussed in items 6 and 7 above, it may be mutually agreed

on 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 and

materials facilities presents chemical and nuclear operational safety

hazards which can best be evaluated by joint NRC-OSHA team assessments.

Each agency will make its best efforts to support such assessments at about

20 facilities once every five years.    Of these facilities, about one-third

are in the OSHA Plan States.    OSHA will also assist in promoting such

participation by State personnel in OSHA Plan States.

-7
10. Based upon reports of injury or complaints at nuclear power plant sites, OSHA will provide NRC with information on those sites where increased

management attention to worker safety is needed.    The NRC will bring

such information indicating significant breakdown in worker safety to the

attention of licensee management and monitor corrective actions.     This

will not interfere with OSHA authority and responsibility to investigate

industrial accidents and worker complaints.

11. Power reactor sites are inspected by NRC Region-based and Resident

Inspectors.   Personnel fromNRC Regional Offices routinely conduct inspec- tions at most fuel and materials licensed facilities.     In order to enhance

the ability of NRC personnel to identify safety matters under OSHA purview

during nuclear and radiological safety inspections, OSHA will provide NRC

*Regional personnel with basic chemical and industrial safety training and

indoctrination in OSHA safety standards, consistent with ongoing OSHA train- ing programs.   To enhance the ability of OSHA and State Plan personnel

to effectively participate in the Operational Safety Team Assessments, NRC

will provide training in basic radiation safety requirements, consistent

with ongoing NRC training programs.    Details of such training will be as

mutually agreed by the NRC Technical Training Center and the OSHA National

Training Institute.

12. Resolution of policy issues concerning agency jurisdiction and operational

relations will be coordinated by the NRC Deputy Executive Director for

Operations, and by the OSHA Director of Policy.   Appropriate Headquarters

points of contact will be established.

-8-
13.  Resolution of issues concerning inspection and enforcement activities

involving. both NRC and OSHA jurisdiction at NRC-licensed facilities will

be handled between NRC's Office of Enforcement and OSHA's Directorate of

Compliance Programs.    Each NRC and OSHA Regional Office will designate

points of contact for carrying out interface activities.

FOR THE NUCLEAR REGULATORY COMMISSION          FOR THE OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION

Afttor SteIlo, }Jr..  ,/ ' -                   JnsAs.   Pendr*grass C/
Executiv*,DireCt/    or Operations             Atsista nt Secretary

October 21,  1988,

UNITED STATES

NUCLEAR REGULATORY COMMISSION

Offe of Govemomietl and Public Affairs

..Wlngtan, D.C. 20655 No.   88-148                                        FOR IMMEDIATE RELEASE:
Tel. 301/492-0240                                 (Friday,..October 21,,1988).

OSHA, NUCLEAR REGULATORY COMMISSIOR AGREE ON COORDINATION OF EFFORTS

TOWARD WORKER SAFETY IN NUCLEAR FACILITIES

The Nuclear Regulatory Commi'ssion and the Occupational Safety -and Health

Administration (OSHA)"in the U.S. Department of Labor have agreed o,.a,-..

coordinated effort toward worker safety in nuclear facilities licensed by the

NRC.

The agreement spells out the responsibilities of the two-agencies in

protecting workers 'at NRC-licensed facilities,"ptovide sguidel!r1es-for.'
improved coqrdination, and atso.commits the two agencies to periodic joidt

evaluation of operational safety 'hazards involved in c'hemical prrocessing of

nuclear material at some facilities.

The agreement is contained in a memorandum of understanding signed for

the NRC by its Executive Director for Operations, Victor Stello Jr.,*and for

OSHA by Assistant Secretary of Labor for Occupational Safety and Health, John A. Pendergrass.

It is expected.to benefit many thousands of Workers in several thousand

NRC-licensed facilities such as- nuclear power.plants, plants manufacturing

nuclear 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 to

coordinate activities of the two agencies.

Discussions which led to today's agreement were prompted by concerns

about jurisdiction of the two agencies following a 1986 fatal accident at

Sequoyah Fuels Corp.'s uranium conversion plant near Gore, Oklahoma, which

involved'release of a substance that was both chemically toxic and radioactive.

One purpose of the agreement is to clarify each agency's jurisdictional

responsibilities in NRC-licensed facilities. OSHA will cover plant conditions

which result in an occupational risk, but do not affect the safety of licensed

radioactive materials. For example, OSHA will protect against exposure to

tox~icnonradioactivematerials-and other industrial hazards :in the workplace.

The NRC will deal with radiation and chemical risks resulting from

radioactive materials, and plant conditions which affect the safety of radio- active materials and thus present an increased radiation risk to workers. *For

example, the NRC qwould seek to prevent a fire or explosion which could lead to

release of radioactive materials or an unsafe reactor condition.

r.

2 Under the agreement, the NRC will advise the licensee management and OSHA

when industrial safety concerns are identified during radiological and nuclear

safety inspections or when complaints are received from workers about OSHA-
covered working conditions.    In the case of complaints, NRC will withhold the

identify of the employee from the licensee. NRC also will encourage licensees

to report to OSHA accidents that result in a fatality or multiple

hospitalizations.

In turn, OSHA will inform the NRC when matters involving radiological or

nuclear safety are revealed in OSHA inspections or through complaints.

Examples are matters involving lax security or work practices that would

affect nuclear or radiological health and safety, improper posting of radia- tion areas, or employee charges that the NRC license and/or regulations were

being violated.

The two agencies agreed that the chemical processing of nuclear materials

at some NRC-licensed facilities presents safety hazards which can best be

evaluated by joint NRC-OSHA teams. Each agency will make its best efforts to

support such assessments at about 20 facilities once every five years. About

one-third of these facilities are in states with OSHA-approved occupational

safety and health programs.    OSHA will assist in promoting participation by

state personnel in those states.

OSHA will provide the NRC with information, based on reports of injuries

or complaints, about nuclear power plant sites where increased management

attention to worker safety is needed.

OSHA also will give training in basic chemical and industrial safety to

NRC inspection personnel so that they will be able to better identify matters

of concern to OSHA in radiological and nuclear inspections. The NRC will

provide training in radiation safety to those OSHA and state program personnel

who may participate in joint evaluation of safety hazards in some facilities.

NOTE TO EDITORS: This announcement also is being issued by the Occupational

Safety and Health Administration.

MEMORANDUM OF UNDERSTANDING                              ..-
                                            BETWEEN

THE 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. Nuclear

Regulatory 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 to

achieve worker protectio *at faci~lities licensed by. the NRC; and to' provide

guidelines for coordination of interface activities between the two agencies.

If NRC licensees observe OSHA's standards and regulations, this will

help minimize workplace hazards.

2.    Both NRC and OSHA have jurisdiction over occulationai safety. and thealth

at NRC-licensed facilities,.. Because it is not always practical to s-haroly

identify boundaries between the nuclear and radiological safety NRC

regulates and the industrial safety OSHA regulates, a coordinated inter- agency effort can ensure against gaps in the protection, of workers and at

the same time, avoid duplication of effort. This- memorandum' replaces an

existing procedure for interagency activities,: "Ge'neral Guidelines'for

Interface Activities between the NRC Regional Offices and the OSHA.:"
  HAZARDS ASSOCIATED WITH NUCLEAR FACILITIES

3.  There are four kinds.of hazards that may be associated with NRC-licensed

nuclear facilities:
        a.    Radiation risk produced by radioactive materials;
        b.    Chemical risk produced by radioactive material s-;
        c.    Plant conditions.which aff c~t.. the. *saft.ye . ,radioactiVe. ma.terials.

and thus present an. increased' radiaticoi risk* *to wor**t*.' 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 not

affect, the.safety,,of licensed radioactive mate'rials. - For example, there might be exposure to toxic nonradioactive materials and other

industrial 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). NRC

and OSHA responsibilities.and actions are described more fully :in paragraphs

4 and 5 below.

NRC RESPONSIBILITIES

4.    NRC is responsible for licensing and regulating nuclear facilities and

materials and for conducting research in support of the. licensing and

regulatory process, as mandated by the Atomic Energy Act of 1954, as

amended; the Energy Reorganization Act.of 1974, as amended; and the

Nuclear Nonproliferation Act of 1978; and in accordance with the.

-2- National Environmental Policy Act of 1969, as amended, and other

applicable statutes. These NRC responsibilities cover the first

three nuclear facility hazards identified in paragraph 3 (a, b, and c).

NRC does not have statutory authority for the fourth hazard described in

paragraph 3 (d).

NRC, responsibilities. include protecting public health and safety;-
      protecting the environment; protecting and safeguarding materials and

plants in the: interest of national securityI and assut1ng conformity

with antitrust laws for certain types of facilities, e.g., nuclear power

reactors. Agency functions are performed through: standards- setting and rulemaking; technical-reviews and studies; conduct of

public hearings; issuance of authorizations, permits and licenses;
       inspection, investigation and enforcement; evaluation of operating

experience; and cQofirmatory research.

===OSHA. RESPONSIBILITIES===
5.    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 o

activities described below does not apply to those workplace safety 'and

health conditions for which other Federal agencies exercise statutory

authority to prescribe dnd enforce standards, rules or regulations.

Under the OSH Act, every employer. has a generalrduty to furnish each

employee with a p-lace 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.    In general, safety standards are intended to protect

against 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 many

years 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, and

natural.ly occurring radioactive materials such as radium.

It is estimated that the Act covers nearly 6 million workplaces employing

more 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 their

authority for occupational safety and health at NRC-licensed facilities

in the same manner as Federal OSHA".

The OSHA areas of responsibility described in this memorandum are subject

to all applicable -requirements and authorities of the OSH Act. However, the industrial safety record at NRC-licensed nuclear power plants is such

that OSHA inspections at these facilities are conducted normally'as a result

of accidents, fatalities, referrals, or worker complaints.

-3- INTERFACE PROCEDURES:
6.    In recognition of the agencies' authorities and responsibilities enumerated

above, the following procedures wil.l be, followed:..

Although NRC does not conduct inspections of industrial safety, in the

course of inspections of radiological and nuclear safety, NRC personnel

may identify safety concerns within the area of OSHA responsibility or

may receive complaints from an employee about OSHA-covered working

conditionrs. In such instances, NRC will'bring'the matter to the attention

of licensee management. NRC inspectors are not to perform the role of OSHA

inspectors; however, they areto elevate OSHA safety issues to the attention

of NRC Regional management when'appropriate. 'If significant safety concerns

are identified or if the licensee demonstrates a pattern of unresponsiveness

to identified concerns, the NRC Regional Office will inform the appropriate

OSHA Regional Office.      In the case of complaints, NRC will withhold, from

the licensee, the identity of the employee.     In addition, when known to

NRC, NRC will encourage licensees, to report to OSHA accidents resulting in

a fatality or mu'ltiple hospitalizations.

When such instances occur within OSHA State Plan States' jurisdiction, the

OSHA Regional Office will refer the matter.to the state for appropriate

action.

7.   OSHA Regiohal Offices will inform'the appropriate NRC Regional Office of

matters which are in the purview of NRC, when these come to their attention

during 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 or

radiological 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 agreed

on 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 and

materials'facilities presents chemical and nuclear op         io,,nAl safety

hazards which can best be evaluated b                       '*essm;nts.

Each agency will make its best efforts t support such assessments at about

20 facilit'ies once .eVery.fiye.years. Of.these facilities, about one-third

are in the OSHAPlan States.' OSHA will also assist in promoting such

participation 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 increased

management-attention to worker'safe'ty isneeded. The'NRC wiII bring

such information indicating. significant breakdown in worker safety to the

dttention of licensee management and monitor corrective actions. This

willnot interfere with'OSHA'authority and responsibility'to investigate

industrial'accidents and worker complaints.

-4-
11.    Power reactor sites are inspected by NRC Region-based and Resident

Inspectors. Personnel from NRC Regional Offices routinely.conduct inspec- tions at most-fuel and materials licensed facilities. In order to enhance

the ability of NRC personnel to identify safety matters under OSHA purview

during nuclear and radiological safety inspections, OSHA will provide NRC

Regional personnel with basic chemical and industrial safety training and

indoctrination in OSHA safety standards, consistent with-ongoing OSHA train- ing programs. To enhance the ability of OSHA:and State Plan personnel

to effectively participate in the Operational Safety Team Assessments,-NRC

will provide training in basic radfction safety requirements, consistent

with ongoing NRC training programs.   Details of such trainting will be as

mutually agreed by the NRC Techni cal Training Center-and the OSHA National

Training Institute.

12.    Resolution of policy issues concerning agency jurisdiction and operational

relations will be coordinated by the NRC Deputy Executive Director for

Operations, and by the OSHA Director of Policy. Appropriate Headquarters

points of contact will be established. ..-.

13.    Resolution of issues concerning inspection and enforcement activities      -
       involving both NRC and OSHA jurisdiction at NRC-licensed facilities will

be handled between NRC's Office of Enforcement and OSHA's DirectQrate of

Compliance Programs.   Each NRC and OSHAWRegional Office will; designate

points of contact for carrying out interface activities.

FOR THE NUCLEAR REGULATORY COMMISSION           FOR THE OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION

ct   Sv**"lfo J  r. Opertin1hnA                      Pendergrass

Executive I6ire~'twj~for Operations             rstant Secretary

===October 21,     1988===

MEMORANDA OF UNDERSTANDING

Office of Personnel Management                                                             Nuclear Safety, NRC published

NRC Manual chapter 4161 and the NRC

-euidelines set forth the following as                                                         Subagreement No. 2 (55 FR 23317)
                                                  Drug Testing Plan (NUREG/BR-.0134),
       w"ured components of an Employee                                                        regarding ASME Code inspections with

section IV.

istance Program: (1) Employee                                                          the State of Illinois.

iseling and referral; (2) education       IV. Funding                                      In Subagreement No. 3, NRC and the

Illinois Department of Nuclear Safety

.-J training on drug-related issues: (3)          NRC training and informal advice will

supervisory consultation regarding                                                             (IDNS) seek to allow Illinois Resident

be provided to the Board at no cost.

Engineers to participate in NRC

tLoubled employees: and (4) supervisory

V. Point of Contact                          inspections at nuclear power plunts in

training to assist managers in

maintaining a drug-free workplace.                   The organizational points of contact     Illinois. This Subagreement is one of the.

first to be signed under the NRC's policy

I. Scope of Work                                                                              regarding "Cooperation With States at

NRC: Patricia Kaplan. (301) 492--49.         Commercial Nuclear Power Plants and

The NRC will assist the Board in             I)NFSH: Janet Burke, (202) 376-50813.        Other Nuclear Production or Utilization

establishing and maintaining an

Finployee Assistance Pr)4,ram, by                    Accepted:                                Facilities" (54 FR 7530; 2/22/89). As

offering the iollowing services:                     By:                                      stated in the polity, "The NRC will

(a) Etduchtjtio and Tivjini;k' for lBoard     John T. Conway,                             consider State proposals to enter into

AloJjgers and Sull.-vison. tu familiarize         Chairmon.D'*jfnise Nuclear FacilitiesSafety instruments of cooperation for State

them with the signs and symptoms of               Board.                                      participation in NRC inspection

alcohol and drug abuse, and to define                Dated: November 28. 1990.                activities when these programs have

and clarify their role and responsibilities          By:                                      provisions to ensure close cooperation

.*s they relate to the Drug- free Federal         James M. Taylor,                            with NRC."
Workplace Rogram.                                                                                  Analysis: On March 27, 1990, the

Executive Directorfor Operations,U.S.

The NRC schedules supervisory                 NuclearRegulatory Commission.               proposed Subagreement Pertaining to

training on a regular basis and will                                                          State Resident Engineers BetweenNRC

Dated: November 2fl, 1990.

provide spaces for Board employees in                                                         and the State of Illinois was published

these cures. If, however, the Board                                                          in the Federal Register for public

wishes to provide training sooner and/                                                        comment, at 55 FR 11275. One set of

55 FR 51973                                  comments was received from

or more extensively than can be                  Published 12/18/90
  accommodated by NRC's schedule. NRC                                                          Commonwealth Edison Co. (CECo). The

will provide the names of possible                                                           comments are addressed individually, F~nal Subagreement Pertaining to

sources for training which can meet the                                                      as follows:
                                                   State Resident Engineers Between                 Com.ent. CECo should be allowed to

Board's needs.                                   NRC and the State of Illinois

(b) Informal Consultation.The NRC's                                                       express its views formally on whether a

AGENCY: Nuclear Regulatory                   particular meeting or inspection will

rtployee Assistance Program and                                                            involve sensitive matters. Sections

or Relations staffs will be available     Commission.

.ae Board's General Manager and            ACTION: Publication of Subagreement          VI.C.8 and VI. D.3 establish the NRC's

utner designated staff members to share          No. 3 between NRC and the State of           discretion to determine whether the

Illinois.                                    Senior Resident Engineer may attend

their knowledge and experiences in

certain meetings with CECo or

matters dealing with troubled                    SUMMARY: Section 274i of the Atomic

employees, including drug testing.                                                            participate in certain inspections of its

Energy Act of 1954, as amended, allows       activities. One factor in the exercise of

disciplinary action, confidentiality             the Nuclear Regulatory Commission

issues, the rehabilitation process, and                                                       that discretion is the potentially

(NRC or Commission) to enter into an         sensitive nature of the subject, meeting

reintegration of rehabilitated employees         agreement with a State "to perform

into the workplace. NRC staff will not,                                                       or inspection. To ensure that the

inspections or other functions on a          potential for sensitivity is fully

however, provide direct counseling to

cooperative basis as the Commission          appreciated, CECo should be given a

Board employees or directly advise               deems appropriate." This section 274i

Board superviors and managers on                                                              formal opportunity to express its views

agreement typically in the form of a         on whether a particular meeting or

specific cases.                                  Memorandum of Understanding (MOU),           inspection will. involve sensitive

(c) Referral Sources. The NRC will           differs from an agreement between NRC        matters..

assist the Board with other EAP                  and a State under the "Agreement                 Response: The Subagreement

functions. i.e., individual counseling,          State" program; the latter is                provides that the State recognize that

referral, supervisory consultation, and          accomplished only by entering into an         thdre may be occasions when, because

employee education, by providing the             agreement under section 274b. of the          of the sensitive nature of certain

names of EAP firms in the Washington            Atomic Energy Act. A State can enter          inspections and meetings, it will be

metropolitan area who can provide               into a section 274i MOU whether or not        necessary for the NRC, at its discretion, those services to meet the unique               it has a section 274b agreement.              to conduct such activities privately and

requirements of the Board.                          In April of 1984, NRC and the State of    separately. The Subagreement does not

I1.Period of Performance                         Illinois signed an "umbrella" MOU,           preclude the license from

providing principles of cooperatiun          cummunicating its opinion on these

The period of performance shall               between the State and NRC in areas of        matters to the NRC.

commence upon signature by both                  concern to both.                                 Correctionto Section VI.C.13--CECo

parties and shall continue uninterrupted             In June of 1984, NRC and the State of    states that the last sentence of section

at the pleasure of either party. This            Illinois signed Subagreement No. 1           VI.C.13. should read, "NRC will forward

agreement may be modified with the               which provided the basis for mutually        the report to the licenses with a cover

consent of both parties. Either party            agreeable procedures whereby the State       letter discussing the issues, if any, that

,y terminate the agreement by                may perform inspection functions for          the NRC believes warrant action by the

viding 60 days written notice to the       and on behalf of the Commission at            licensee." The words "the report to the

,er party.                                  certain reactor and materials licensees'      licensee with" were inadvertently

1Il. Applicable Guidance                         facilities which generate low-level           omitted from the Federal Register

radioactive waste.                           Notice. The comment is accepted, and

The NRC and the Board will follow                On June 7, 1990, following signature      the text of the Subagreement has been

the guidance and directives contained in         by NRC and the Illinois Department of         changed.

September 30, 1993 (reset)                                        MU-72

Mr.MUt1AN'LA ur            UN'Ur-Mb I AI'ILINU

Commen,: NRC, IDNS and CECo                shared with the State under Illinois           VI.Dfl.B. CECo's participation in the

should work together to agree on which        Subagreement No. 3, it should still be         process would: be unworkable. and

IDNS issues warrant CECo action.              protected from disclosure to the same          inconsistent with the NRC'sand the

Section VI.C.13 would require IDNS to         e>tent as it: would'be at the NRC:             State's; conduct- of theiir own.procedures, submit all written communications             Therefore. if the IFOIA provided: less         which are- governed by: the applicable

concerning CECo inspection activity to        protection than FOIA,. the NRC:would           statutes and'regulations.

the NRC. The NRC will review those            be concerned regarding a method of                 Comment' Regul'atory Confusion.

communications and inform CECo as to          providing-am equal level of'protectionr        CECo.expressed concern that the

which issues the NRC believes warrant        for the documents provided. to the. State'     addition of another regulatory observer

action by CECo. CECo believes that a         under this Subagreement.                       may create confusion and

more efficient process would result if           However. CECo does not specifically        administrati.vie.burdena far plant;
the NRC, IDNS and CECo would work            contend that IFOIA provides less               management.

together to agree on which IDNS issues       protection to sensitive or proprietary

warranted CECo action.                                                                          Response,-Both the Subagreement andi

. Response: The Subagreement

information than FOIA. Indeed,. a facial:      the Cornmiusicies Poliny.Statemmit one:
                                              comparison shows that IFOIA seems. to          Cooperation With Stales reflect. that

specifically indicates that State            provide: a similar-level of protection- to:    State activities must be conducted in

activities will be performed in              that afforded by-FOIA. Additionally, ini       accordance with Federal standards and- accordance with Federal standards and        paragraph.VLID;. of proposed Illinois          requirements and;N`RC practices, with

requirements and NRC practices. Also         Subagreement No. 3, the State agrees to

consistent with NRC's Policy Statement       conform its practices regarding                no undue burden on the NRC or its

on Cooperation With States at                information disclosure to those of the          licensees.

Commercial Nuclear Power Plants and          NRC. In paragraph VI.D;6., the State and           Comment:. Recommendatibn to

Other Production or Utilization              NRC agree to consult with each other           Monitor Implementation. CECo strongly

Facilities, the Subagreement specifically      Wefore releasing sensitive or proprietary     recommends. that NRC monitor

states that nothing in this agreement         information related. to this:                  implementaLion, of the Subagreement.

confers upon the State or the State           Suhagreement. IFOIA and these.                    Response: The NRC has provided a

Resident Engineer authority to: (3)           1-rovisions would appear likely to             number of controlsin: the Subagreement

Interpret or modify NRC regulations and       provide protection. At this time it is         so that it: can.be confident in the State.

NRC requirements imposed on the               impossible to predict with complete            Resident. Inspector's ability to perfarm.

licensee; (2) take enforcement actions;       confidence how.Illinois will interpret         inspections, ii aware! of and has          -
(3) issue confirmatory letters; (4) amend,    and implement this Subagreement and            accounted for-the inspections planned.

modify, or revoke a license issued by         fl;e relevant- IFOIA provisions. However,      by the State, and communicates: with. the

NRC; and (5) direct or recommend              the NRC-State consultations pursuant to,       licensee on al' follow-up actions andi

nuclear power plant employees to take         paragraph VLD6.. should:insure- that the.

or not to take any action. Authority for                                                    enforcement. It is intended that there

NRC is aware. ofillinois practices and:        will be communication between NRC

all such actions is reserved exclusively     procedures in releasing information. If

to the NRC. Clearly there is no option                                                      and State staff members oneday-to-day

additional protective measures are

for a collaborative process in               r.equired, they canbe tailored to address      activities. Further, the Subagreement

interpreting or imposing NRC                  the specific requirements of the               requires a formal review, not less than.

requirements on a licensee.                   situation..                                    six months after the effecti've date', to be

Comment: Differences in Freedom of           Cornment Consultation. Section             perfbrmed by-the NRC. to evaluate

Information Acts. Sections VI.D.5 and        VI.D.6 also would require IDNS and the         implementation of the Subagreement

VI.D.6 imply that IDNS will apply the        NRC;to consult with: each other beforei        and resolve any problems. identifi ed. In

Illinois Freedom of Information Act          releasing sensitive or proprietary.            addition, periodic reviewsare called for

(IFOIA) to the fullest extent possible to    information, related to this                    thereafter.

protect sensitive and proprietary            Subagreement. Toiensure that the                   Conclusion:After careful

iiformation just as the NRC applies the      sensitivity of particular information, is,      consideration of the comments

Federal Freedom of Information Act           fully, appreciated, CECo should have an,        submitted, the Commission has.

(FOIA). It is not clear that IFOIA           opportunity to participate in the               determined to approve Subagreement

provides the same level of protection as     consultation before a final decision to         No; 3 Pertaining to State-Resident

FOIA. There are far fewer judicial            release information is, made; Moreover,.       Engineers Between the U*S. Nuclear

interpretations of IFOIA than of FOIA;        any disagreements, over release: should;       Regulatory Commission and the State of

Illinois judges may take a broader view       be resolved in: accordance, with the           Illinois. Certain-minor editorial changes

of the public's right to know than have       dispute resolution provisions set forth in     to the text of the Subagreement have

federal judges. Therefore, greater            !-,oction VIII.                                been. made, including the charge to

protection would be provided if IDNS             R.,sponse: The release of sensitive or      section VLC.13 discussed in. the NRC

had unlimited access to information           proprietary information in this situation      response to comments..

covered by the Subagreement but did           is governed by- the FOIA, NRC related;
  not physically retain any information         regulations,, and: IFOIA. If CECo is           FOR FURTHE       INFORMATION

==CONTACT==
:.

which IFOIA could not clearly protect         concerned'about the release of sensiti.ve:     Frederick C; Combs,. Assistant Directur

from unwarranted public disclosure.          or proprietary information, CECo:muat           of State, Local and Indian Relations, Response: In practice, CECo must          first be certain that any such                  State Programs, Office of Governmental

identify any proprietary or sensitive        information is submitted pursuant to the        and'Public Affairs, U.S. Nuclear

information submitted to the NRC which       regulations contained in 10 CYR 2:790.          Regulatory Commission, Washington;
   it wishes to have withheld from public       This iiformnation, if it has been properly      DC'20555; telephone.[391) 492-03"25;
   disclosure (10 CFR 2.790(b)(1)). Any         submitted. to. the NRC and determined, to          Dated at.Rockvilte.A.?c this.lath day (f.

information so submitted and                  be properly withheld from disclosure;          December 1990.

determined to be protected from public       should be. protected by operation of               Fr" the NuclearRegulatoryCaommissiumn

disclosure under the criteria in 10 CFR       these statutes and.regulations,. and: also     Carlton. Kammerer,.

2.790 is accorded protection from             by the: consultation, process. between the'
   disclosure to the full extent of FOIA and     Stateand NRC(pursuant toparagraph              Director,State Programs,Office of"
   NRC regulations. If such information is                                                      Governmental and Public Affairs.

MU-73                                  September 30, 1993 (reset)}}

{{Information notice-Nav}}