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• Standard Number: 1910.134(i)

[29 CFR 1910.134(i)]

March 6, 1979

Mr. J. A. Werling
Duquesne Light
Beaver Valley Power Station
Post Office Box 4
Shippingport, PA 15077

Dear Mr. Werling:

Assistant Secretary Eula Bingham has asked me to respond to your letter dated January 30, 1979, concerning your request for a variance from Section [1910.134(i)] Respiratory Protection - Air Quality, of the Occupational Safety and Health Standards.

You advised Mr. Keeling of my staff during your telephone conversation on February 27, 1979, that the work area and those issues in your application related to the air-quality in a containment facility which may be characterized as primarily radiological in nature. Additionally, you advised Mr. Keeling that the facility is subject to regulations issued by the Nuclear Regulatory Commission (NRC). This issue, therefore, is not within the authority of the Occupational Safety and Health Administration (OSHA).

Section 4(b)(1) of the Williams-Steiger Occupational Safety and Health Act of 1970 states that: "Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." The purpose of this provision of the Act is to avoid unnecessary duplication of effort by the Federal agencies. Therefore, any standards promulgated under the Williams-Steiger Act may not be applied to specific working conditions with respect to which another Federal agency has exercised its statutory authority by issuing standards affecting occupational safety and health.

The OSHA standard in question, [1910.134(i)], may not be applied if the working conditions to which this standard relates is subject to regulations issued by the NRC. The regulations promulgated by NRC in [10 CFR 20 Subpart H] relate to protection against radiation, which includes the use of personal protective equipment. The authority of the NRC to regulate safety and health is limited to the regulation of safety and health conditions involving the processing and use of source by-product, and special nuclear material. These regulations are designed to eliminate radiological hazards, although these regulations may involve nonradiological hazards.

Therefore, because the hazardous working conditions in a containment facility may be characterized as primarily radiological in nature, the NRC regulations will generally be applicable to those working conditions, and Section 4(b)(1) will preclude the application of OSHA standards. Even in the case of using the compressed oxygen in air supplied respirators, the hazard involved and the possibility of a fire in a containment facility are so closely related to the integrity of the nuclear reactor itself, that this hazard must be characterized as radiological when it may occur in a containment facility. For this reason, the NRC regulations relating to the nuclear containment facility should be applied and will be considered an exercise of the NRC's statutory authority to regulate radiological safety and health which precludes the application of OSHA standard [1910.134(i)].

No further action will be taken on your request for a variance. If I can be of further assistance, please contact my office - telephone: (202) 523-7193.

Sincerely,

James J. Concannon Director
Office of Variance Determination


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