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Conference Report 107-772 - National Defense Authorization Act for Fiscal Year 2003

Conference Report Section

Legislative History

(a) WORKER HEALTH AND SAFETY RULES- The Atomic Energy Act of 1954 is amended by inserting after section 234B (42 U.S.C. 2282b) the following new section:

Conference Report 107-772

The Senate amendment contained a provision (sec. 3172) that would add a new section 234C, following 234B of the Atomic Energy Act of 1954 (42 U.S.C. 2282b). This new section would authorize the Secretary of Energy to assess civil penalties against Department of Energy (DOE) contractors who have entered into an agreement of indemnification under section 170d of the Atomic Energy Act of 1954, for violation of any regulation relating to industrial or construction health and safety promulgated by DOE. The provision would also direct the Secretary to promulgate industrial and construction health safety regulations that incorporate the provisions of DOE Order No. 440.1A (1998) no later than 270 days from the date of enactment of this Act. These regulations would go into effect one year after the date of promulgation of the regulations. The provision would cap any fines at $0.1 million per violation and would direct the Secretary to provide in the regulations a variance and exemption process for national security related work and at sites and facilities to be closed or transferred. The provision would cap total fines and penalties under 234A, 234B, and 234C, for nonprofit contractors so that the total fees assessed would not exceed the amount of the annual fee paid by DOE. Activities under the Naval Nuclear Propulsion Program would be excluded from the program.  (See S. 2514 below.)

The House bill contained no similar provision.

The House recedes with an amendment that would direct the Secretary to promulgate regulations for industrial and construction health and safety. The regulations promulgated would provide a level of protection for workers that is substantially equivalent to current levels of protection. The conferees note that the DOE contractors currently operate under DOE order 440.1A (1998) which provides an adequate level of safety.

The Secretary would also be required to establish a mechanism to provide flexibility to implement the regulations. The regulations should establish a process that would allow sites to implement the regulations to account for unique site or mission circumstances or particular work environments and would include national security missions and requirements at closing facilities. In establishing a process for flexible implementation, the Secretary should ensure that there is no diminution of worker health and safety.

The provision would direct the Secretary to assess either civil penalties or contract penalties, but not both, for any individual action and would prohibit the Secretary from assessing a penalty under both 234A and 234C for the same action. The maximum fine for each violation would be $70,000.

S.2514

SEC. 3172. WORKER HEALTH AND SAFETY RULES FOR DEPARTMENT OF ENERGY FACILITIES.

The Atomic Energy Act of 1954 is amended by inserting after section 234B (42 U.S.C. 2282b) the following:

`SEC. 234C. WORKER HEALTH AND SAFETY RULES FOR DEPARTMENT OF ENERGY NUCLEAR FACILITIES.

`(a) PERSONS SUBJECT TO PENALTY-



`(1) CIVIL PENALTY-



`(A) IN GENERAL- A person (or any subcontractor or supplier of the person) who has entered into an agreement of indemnification under section 2210(d) (or any subcontractor or supplier of the person) that violates (or is the employer of a person that violates) Department of Energy Order No. 440.1A (1998), or any rule or regulation relating to industrial or construction health and safety promulgated by the Secretary of Energy (referred to in this section as the `Secretary') after public notice and opportunity for comment under section 553 of title 5, United States Code (commonly known as the `Administrative Procedure Act'), shall be subject to a civil penalty of not more than $100,000 for each such violation.

`(B) CONTINUING VIOLATIONS- If any violation under this subsection is a continuing violation, each day of the violation shall constitute a separate violation for the purpose of computing the civil penalty under subparagraph (A).

`(2) REGULATIONS-

`(A) IN GENERAL- Not later than 270 days after the date of enactment of this section, the Secretary shall promulgate regulations for industrial and construction health and safety that incorporate the provisions and requirements contained in Department of Energy Order No. 440.1A (1998).

`(B) EFFECTIVE DATE- The regulations promulgated under subparagraph (A) shall take effect on the date that is 1 year after the promulgation date of the regulations.

`(3) VARIANCES OR EXEMPTIONS-

`(A) IN GENERAL- The Secretary may provide in the regulations promulgated under paragraph (2) a procedure for granting variances or exemptions to the extent necessary to avoid serious impairment of the national security of the United States.

`(B) DETERMINATION- In determining whether to provide a variance or exemption under subparagraph (A), the Secretary of Energy shall assess--

`(i) the impact on national security of not providing a variance or exemption; and

`(ii) the benefits or detriments to worker health and safety of providing a variance or exemption.

`(C) PROCEDURE- Before granting a variance or exemption, the Secretary of Energy shall--

`(i) notify affected employees;



`(ii) provide an opportunity for a hearing on the record; and



`(iii) notify Congress of any determination to grant a variance at least 60 days before the proposed effective date of the variance or exemption.



`(4) APPLICABILITY- This subsection does not apply to any facility that is a component of, or any activity conducted under, the Naval Nuclear Propulsion Program.



`(5) ENFORCEMENT GUIDANCE ON STRUCTURES TO BE DISPOSED OF-



`(A) IN GENERAL- In enforcing the regulations under paragraph (2), the Secretary of Energy shall, on a case-by-case basis, evaluate whether a building, facility, structure, or improvement of the Department of Energy that is permanently closed and that is expected to be demolished, or title to which is expected to be transferred to another entity for reuse, should undergo major retrofitting to comply with specific general industry standards.

`(B) NO EFFECT ON HEALTH AND SAFETY ENFORCEMENT- This subsection does not diminish or otherwise affect--

`(i) the enforcement of any worker health and safety regulations under this section with respect to the surveillance and maintenance or decontamination, decommissioning, or demolition of buildings, facilities, structures, or improvements; or

`(ii) the application of any other law (including regulations), order, or contractual obligation.

`(b) CONTRACT PENALTIES-

`(1) IN GENERAL- The Secretary shall include in each contract with a contractor of the Department provisions that provide an appropriate reduction in the fees or amounts paid to the contractor under the contract in the event of a violation by the contractor or contractor employee of any regulation or order relating to industrial or construction health and safety.

`(2) CONTENTS- The provisions shall specify various degrees of violations and the amount of the reduction attributable to each degree of violation.

`(c) POWERS AND LIMITATIONS- The powers and limitations applicable to the assessment of civil penalties under section 234A, except for subsection (d) of that section, shall apply to the assessment of civil penalties under this section.

`(d) TOTAL AMOUNT OF PENALTIES- In the case of an entity described in subsection (d) of section 234A, the total amount of civil penalties under subsection (a) or under subsection (a) of section 234B in a fiscal year may not exceed the total amount of fees paid by the Department of Energy to that entity in that fiscal year.'.