Overview of DOE, NRC and OSHA Regulatory Authority

DOE

Under the Atomic Energy Act (AEA; 42 U.S.C. 2201(i)(3) and 2282c) DOE owns and operates numerous nuclear facilities across the country, including research laboratories, reactors, accelerators, production facilities for nuclear materials and weapons, and storage facilities for nuclear materials and radioactive wastes. It is also engaged in environmental cleanup operations at some of these sites. Most of the work at these DOE sites is done by either federal employees or private companies working under contract to the federal government. Most of the sites where the contactors are working are referred to as government-owned, contractor-operated (GOCO) facilities. Pursuant to AEA mandates, DOE comprehensively regulates the occupational safety and health of the contractor employees at these GOCO sites. Its regulations are set forth in 10 CFR Part 851. Under these regulations, contractors are required to develop and implement worker safety and health programs (10 CFR 851.10 and .11). With certain exceptions, they must follow OSHA standards and recordkeeping regulations; they are also subject to additional requirements (10 CFR 851.23) beyond compliance with applicable OSHA standards. DOE inspects these worksites to verify the continued effectiveness of contractors' worker safety and health programs. If DOE finds violations, it may issue compliance orders and assess penalties or reduce contractual payments (10 CFR 851.4, .5, and .40).

NRC

The U.S. Nuclear Regulatory Commission (NRC) was created as an independent agency to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment. Under the AEA and the Energy Reorganization Act of 1974 (ERA), the NRC regulates the use of nuclear materials by commercial nuclear power plants and others, such as health care providers, through licensing, inspection and enforcement of its requirements. It has issued standards for protection against radiation (10 CFR Part 20). Some of the regulation of radioactive materials is carried out by states with plans approved by NRC, known as NRC Agreement States (42 U.S.C. 2021).

 

 

OSHA

OSHA was established within the U.S. Department of Labor to enforce the Occupational Safety and Health Act of 1970 (OSH Act) to assure the safety and health of America's workers by setting standards and other requirements, including recordkeeping provisions; enforcing those requirements through inspections, citations and penalties; protecting workers from retaliation because of complaining about unsafe or unhealthful conditions and related activity in their workplaces; providing training, outreach, and education; establishing partnerships; and encouraging continual improvement in workplace safety and health. Through the OSH Act, OSHA exercises regulatory authority over private-sector workers to ensure worker safety and health. States may also regulate issues with respect to which OSHA has issued standards under a plan approved by OSHA. The state standards must be as effective as Federal OSHA standards and must be enforced as effectively as Federal OSHA does. States with plans applying to private-sector workers must cover state and local government workers. For information on State Plans including addresses and telephone numbers, see OSHA's State Plans webpage.

The health and safety of federal employees are covered by separate requirements under the provisions of Executive Order 12196. This executive order is enforced by OSHA pursuant to regulations in 29 CFR Part 1960.

Section 4(b)(1) of the OSH Act (29 U.S.C. 653(b)(1)) provides that the Act does not apply to working conditions, i.e., dangers with respect to which other federal agencies, or state agencies acting under section 274 of the Atomic Energy Act of 1954, 42 U.S.C. 2021, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. The section 4(b)(1) exemption is designed to prevent the duplication of federal efforts, as well as prevent conflict between different regulatory requirements.

The application of section 4(b)(1) to the exercise of DOE and NRC authority is discussed in more detail on the Memorandums of Understanding (MOUs) page.

Memorandums of Understanding (MOUs)

OSHA signed Memorandums of Understanding (MOUs) with both DOE and NRC. These agreements outline the regulatory responsibilities of the agencies for occupational safety and health and provide for coordination between OSHA and the other agencies. The following is a list of MOUs:

Department of Energy

Formalize Working Relationships. (DOE/DOL; August 28, 1992). The purpose of this MOU is to formalize the working relationship between the two Agencies with respect to contractor employees at DOE's Government-Owned Contractor-Operated (GOCO) facilities. Pursuant to section 4(b)(1) of the OSH Act, the agencies agree that DOE has occupational safety and health regulatory authority over the working conditions of contractor employees at DOE's GOCO facilities and thus the OSH Act does not apply to those working conditions. At the same time, federal workers are covered by Executive Order 12196 and the requirements for Federal Employee Occupational Safety and Health Programs (29 CFR 1960), and OSHA may inspect their working conditions. The agencies agree that they may provide technical assistance and training to each other, among other things. Both parties agree that requests for technical assistance and/or consultation which involve a commitment of resources will require a specific Interagency Agreement between the parties covering the scope of work, timing, and reimbursement.

Privatized Facilities and Operations. (DOE/OSHA; July 25, 2000). This MOU delineates the procedures by which DOE will notify OSHA regarding the need for the agencies to address occupational safety and health regulatory authority at privatized facilities and operations at DOE sites, and describes procedures and criteria for Federal OSHA's or a State Plans' acceptance of occupational safety and health regulatory responsibilities at these facilities and operations. See the Privatization section of the web page for more information on this topic.

Nuclear Regulatory Commission

Worker Protection at NRC-licensed Facilities. (OSHA/NRC; October 21, 1988; Revised September 6, 2013). The purpose of this MOU between NRC and OSHA is to define 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. The MOU clarifies that generally NRC covers risk produced by radioactive materials, chemical risk produced by radioactive materials, and plant conditions which affect the safety of radioactive materials. By contrast, OSHA covers plant conditions which result in occupational risk, but do not affect the safety of licensed materials. Each agency is expected to bring safety concerns it observes within the purview of the other agency to the attention of that agency.

Gaseous Diffusion Plants. (OSHA/NRC; August 1, 1996). The United States Enrichment Corporation (USEC) Privatization Act provides for the establishment of a private corporation to conduct uranium gaseous diffusion. The sole operating gaseous diffusion plant is located in Paducah, Kentucky. Further, the Act provides that the corporation is subject to OSHA authority. The Corporation is also obligated to comply with NRC radiological hazard standards. OSHA and NRC were required to enter into an MOU to define the exercise of their respective authorities over occupational safety and health at the plant. As stated in the document, its purpose is to delineate the general areas of responsibility of each agency; to describe generally the efforts of the agencies to achieve worker protection; and to provide guidelines for the coordination of interface activities between the two agencies. The MOU clarifies that NRC covers radiological hazards and any other hazards that may affect radiological safety at the facility; OSHA covers non-radiological hazards. Each agency is required to bring hazards covered by the other agency which it discovers to the attention of the other agency.

Whistleblower Protection. (DOL/NRC; October 27, 1998). This MOU deals with coordination between DOL and NRC on the protection of nuclear safety whistleblowers employed by NRC licensees, licensee applicants, and contractors and subcontractors of NRC licensees and licensee applicants. Section 211 of the Energy Reorganization Act (ERA, 42 U.S. 5851), provides whistleblower protection for such employees. OSHA conducts investigations; DOL administrative law judges and the DOL Administrative Review Board decide cases. Under this provision, when violations are found, whistleblowers are entitled to reinstatement, back pay, and other relief. Under its own regulations, NRC has the authority to issue orders and assess penalties against those who retaliate against employees for nuclear safety whistleblowing. The MOU requires each agency to inform the other about its nuclear safety whistleblower cases, among other things. More information regarding whistleblower protections is available at OSHA's Whistleblower Protection Program web page.

Privatization

Privatization of DOE Facilities and OSHA Regulatory Authority

In 1996, DOE began several initiatives to address budget reductions and facilitate local community stability in light of changes to the DOE weapons production mission following the end of the Cold War. These initiatives resulted in the privatization, re-industrialization, or commercialization of many DOE facilities and operations through various mechanisms, such as leases or sub-leases, and property sales.

These facilities and operations—referred to as "privatized"—are engaged in private commercial enterprises. Because they are no longer subject to DOE worker safety and health regulatory authority, OSHA and DOE developed a mutually acceptable policy for the transfer of occupational safety and health authority at privatized facilities and operations located on DOE sites through the provisions of the Privatized Facilities and Operations MOU. (DOE/OSHA; July 25, 2000). According to key provisions of the MOU:

• DOE will notify OSHA regarding the proposed transfer of occupational safety and health authority at certain facilities and operations it intends to privatize.
• DOE will indicate that the sites to be privatized meet necessary criteria for OSHA's acceptance of authority over the facilities and operations proposed for transfer.
• OSHA or the affected State Plan (working with OSHA) determines whether to accept safety and health authority over the facilities and operations proposed for transfer.
• Once OSHA or the affected State Plan determines that it is assuming such regulatory authority over the facilities and operations accepted for transfer, it is then required to provide public notice. OSHA notifies the public of such transfers by publishing an addendum to the Formalized Working Relationships MOU (DOE/DOL; August 28, 1992) in the Federal Register.

Privatized Operations at DOE Sites

OSHA published the following Federal Register addendum notices about the transfer of authority over privatized operations.

Argonne National Laboratory (ANL): Argonne National Laboratory (ANL) is located in DuPage County, Illinois, about 25 miles southwest of Chicago's Loop. The first ANL facility to be privatized was the Ricketts Regional Biocontainment Laboratory, which takes up approximately four acres (70 FR 21818; April 27, 2005). The second facility to be privatized was the Theory and Computing Sciences (TCS) building during its construction (74 FR 120; January 2, 2009). Later following completion of construction (April 2010), its operations were also privatized.

Note: DOE notified OSHA that the construction of the TCS building was complete and that it no longer exercises occupational safety and health authority over the building's management or its tenants' privatized operations. Therefore, OSHA retained and continues to maintain its safety and health authority over these operations.

Oak Ridge National Laboratory (ORNL): The East Tennessee Technology Park (ETTP) was formerly a part of DOE's vast complex located at Oak Ridge National Laboratory (ORNL) in Oak Ridge, Tennessee. ETPP is undergoing privatization and reindustrialization. As part of this process, several buildings, facilities and parcels of land have been privatized and worker safety and health authority transferred from DOE to the Tennessee Occupational Safety and Health Administration (TOSHA). The first set of privatized facilities consisted of six buildings and support facilities (74 FR 120; January 2, 2009). The second set of ETPP privatized facilities consisted of two building complexes and three parcels of land (76 FR 80408; December 23, 2011). The third set of ETPP privatized facilities consisted of two parcels of land (79 FR 29456; May 22, 2014).

Savannah River Site (SRS): SRS is a 310-square mile site located in the Sandhills region in South Carolina and is bordered on the west by the Savannah River and Georgia. The following entities located on the SRS site entered into privatization agreements with OSHA:

• The South Carolina Gas and Electric Company (SCG&E) operates a former DOE power plant that is one of the privatized entities located at SRS. SCG&E operates certain coal-fired power and heat generation facilities selling the resulting power to DOE, as well as some outside (non-DOE) customers. OSHA entered into an agreement with DOE (amendment of the August 28, 1992 interagency MOU between OSHA and DOE) that implements the termination of DOE's authority over occupational safety and health and makes all standards, rules, and requirements under the OSH Act applicable to its leased facilities (61 FR 15059; April 4, 1996).
• The Three Rivers Solid Waste Authority operates a landfill for the disposal of municipal solid waste, commercial waste, and industrial waste from nine surrounding counties and DOE's SRS. The Three Rivers Solid Waste Authority is another of the privatized entities located at SRS that entered into an agreement with DOE (amendment of the August 28, 1992 interagency MOU between OSHA and DOE). The MOU clarifies that all occupational safety and health standards, rules and requirements under the OSH Act are applicable to its employees at workplaces within the 1,378 acre of land it leases (62 FR 42535; August 7, 1997).

Non-Atomic Energy Act (AEA) Sites

Non-AEA sites are locations that do not involve activities authorized under the Atomic Energy Act of 1954. DOE oversees many non-AEA sites. However, DOE advised OSHA that it is not exercising safety and health regulatory authority over these non-AEA sites. Therefore, 4(b)(1) of the OSH Act does not apply. Federal OSHA or a State Plan regulates worker safety and health at these non-AEA sites. These sites fall into two broad categories: Power Marketing Administrations and Fossil Energy Sites.

Power Marketing Administrations

The Power Marketing Administrations oversee the selling of electric power. Each of the four Power Marketing Administrations is a distinct and self-contained entity within the DOE. Private contractors at the following sites are covered by Federal OSHA or a State Plan.

The four Power Marketing Administrations and the locations of their sites are:

• Bonneville Power Administration, Portland, Oregon*: CA,*ID, MT, NV,*OR,*UT,*WA (except in controlled areas of the Hanford Reservation).*
• Southeastern Power Administration, Elberton, Georgia: AL, FL, GA, IL, KY,*MS, NC,*SC,*VA (except the Kerr-Philpott System) and *WV.
• Southwestern Power Administration, Tulsa, Oklahoma: AR, KS, LA, MO, OK, and TX.
• Western Area Power Administration, Golden, Colorado: AZ,* CA,* CO, IA,* KS, MN,* MT, NE, ND, NM (except Elephant Butte),*NV,*SD, TX, *UT, and *WY.

*State Plan. The state covers the sites, except as noted. Federal OSHA covers the excepted areas.

Fossil Energy Sites

DOE's Office of Fossil Energy is responsible for several Presidential initiatives including the development of a new generation of environmentally sound, clean coal technologies; the development of a pollution-free plant to co-produce electricity and hydrogen; and the nation's Strategic Petroleum and Northeast Home Heating Oil Reserves.

The Fossil Energy Sites are:

• National Energy Technology Laboratory, Morgantown, West Virginia
• National Energy Technology Laboratory, Pittsburgh, Pennsylvania
• National Petroleum Technology Office, Tulsa, Oklahoma
• Albany Research Center, Albany, Oregon. Although this site is in a State Plan, Federal OSHA covers it.
• Strategic Petroleum Reserves, New Orleans, Louisiana

Note: Even in State Plans where the information above indicates state coverage, federal employees and employees of private-sector companies responsible for operating entire facilities (GOCOs) are covered by Federal OSHA.

FRNs Clarifying OSHA/DOE Jurisdiction Affecting Non-Atomic Energy Act (AEA) Sites

OSHA published two Federal Register notices (FRNs) designed to define and clarify OSHA/DOE responsibilities for worker safety and health at non-Atomic Energy Act (AEA) Sites. These agreements outline the regulatory responsibilities of the agencies for occupational safety and health and provide for coordination between OSHA and DOE.

1. Occupational Safety and Health of Contractor Employees at Energy Department Sites; Jurisdiction and Enforcement Responsibilities; Clarification. (65 FR 41492; July 5, 2000). Provides clarification of the enforcement responsibilities of OSHA at various DOE government-owned or leased facilities which are not subject to the Atomic Energy Act (AEA).
2. Occupational Safety and Health of Contractor Employees at Certain Energy Department Sites; Jurisdiction and Enforcement Responsibilities; Clarification Regarding State Plans--Arizona, California, Iowa, Kentucky, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Utah, Virginia, Washington, and Wyoming. (71 FR 36988; June 29, 2006). Provides further clarification on the enforcement responsibilities of OSHA and 14 of its approved State Plans at various DOE sites which are not subject to the Atomic Energy Act.