Title 902 | Chapter 100 | Regulation 165
SUPERSEDED
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PREVIOUS VERSION
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CABINET FOR HEALTH AND FAMILY SERVICES
Department for Public Health
Division of Public Health Protection and Safety
(Amendment)
902 KAR 100:165.Notices, reports, and instructions to employees.
Section 1.
Posting of Notices to Workers.(1)
A licensee or registrant shall post current copies of the following documents relating to standards for protection against radiation:(a)
1.
This administrative regulation;2.
902 KAR 100:019, as applicable for users other than radioactive materials users; and3.
902 KAR 100:185 as applicable for radioactive material users(b)
The license, certificate of registration, conditions or documents incorporated into the license by reference, and amendments to the license;(c)
The operating procedures for work under the license or registration; and(d)
A notice of violation involving radiological working conditions, proposed imposition of civil penalty, or order issued as authorized by 902 KAR 100:170, and responses from the licensee or registrant.(2)
If posting of a document specified in subsection (1)(a), (b), or (c) of this section is not practical, the licensee or registrant shall post a notice that describes the document and states where it may be examined.(3)
Cabinet form KR-441, Notice to Employees, incorporated by refence in 902 KAR 100:070, shall be prominently posted by a licensee or registrant.(4)
Documents, notices, or forms posted as required by this section shall:(a)
Appear in a sufficient number of places to permit an individual engaged in work under the license or registration to observe them on the way to or from a particular work location to which the document applies;(b)
Be conspicuous; and(c)
Be replaced if defaced or altered.(5)
(a)
Cabinet documents posted as required by subsection (1)(d) of this section shall be posted within two (2) working days after receipt of the documents from the cabinet;(b)
The licensee's or registrant's response shall be posted within two (2) working days after dispatch from the licensee or registrant; and(c)
The documents shall remain posted for a minimum of five (5) working days or until action correcting the violation has been completed, whichever is later.Section 2.
Instructions to Workers.(1)
An individual who is likely to receive in a year, during the course of employment, an occupational dose in excess of 100 millirems (one (1) mSV) shall be:(a)
Kept informed of the storage, transfer, or use of sources of radiation in the licensee's or registrant's workplace;(b)
Informed of potential health risks(c)
Instructed in, and instructed to observe, to the extent within the worker's control, the applicable requirements of 902 KAR Chapter 100 and licenses issued thereunder for the protection of personnel from exposures to radiation or radioactive material;(d)
Instructed of their responsibility to report promptly to the licensee or registrant a condition that may lead to or cause a violation of the Act, 902 KAR Chapter 100, or license conditions, or unnecessary exposure to radiation or radioactive material;(e)
Instructed in the appropriate response to warnings made in the event of an unusual occurrence or malfunction that may involve exposure to radiation or radioactive material; and(f)
Informed of the radiation exposure reports that workers may request as authorized by Section 3 of this administrative regulation.(2)
In determining the individuals subject to the requirements of this section, a licensee or registrant shall take into consideration assigned activities during normal and abnormal situations involving exposure to radioactive material or radiation that can reasonably be expected to occur during the life of a licensed or registered facility. The extent of the instructions shall be commensurate with potential radiological health protection problems in the workplace.Section 3.
Notifications and Reports to Individuals.(1)
Radiation exposure data for an individual and the results of any measurements, analyses, and calculations of radioactive material deposited or retained in the body of an individual, shall be reported to the individual as specified in this section.(2)
The information reported shall include data and results obtained pursuant to cabinet regulations(3)
Each notification and report shall:(a)
Be in writing;(b)
Include appropriate1.
The name of the licensee or registrant;2.
The name of the individual; and3.
The individual's identification or Social Security number;(c)
Include the individual's exposure information; and(d)
Contain the following statement: "This report is furnished to you under the provisions of the Kentucky Cabinet for Health and Family Services' radiation administrative regulation(4)
Each licensee or registrant shall make dose information available to workers as shown in records maintained by the licensee or registrant under the provisions of 902 KAR 100:185.(5)
The licensee or registrant shall provide an annual report to each individual monitored under 902 KAR Chapter 100 of the dose received in that monitoring year if:(a)
The individual's occupational dose exceeds 1 mSv (100 mrem) TEDE or 1 mSv (100 mrem) to any individual organ or tissue; or(b)
The individual requests his or her annual dose report.(6)
(5)
At the request of a worker formerly engaged in licensed activities(a)
Be furnished within thirty (30) days from the time the request is made, or within thirty (30) days after the exposure of the individual has been determined by the licensee or registrant, whichever is later.(b)
Cover the period of time the worker's activities involved exposure to radiation from radioactive material(c)
Include the dates and locations of licensed activities(7)(6)
If a licensee or registrant is required(8)(7)
(a)
At the request of a worker who is terminating employment with the licensee or registrant that involved(b)
If the most recent individual personnel monitoring results are not available at the time of termination, a written estimate of the dose shall be provided.(c)
Estimated doses shall be clearly indicated as estimated doses.Section 4.
Presence of Representatives of Licensees or Registrants and Workers during Inspection.(1)
A licensee or registrant shall afford to the cabinet at all reasonable times opportunity to inspect materials, machines, activities, facilities, premises, and records required by 902 KAR Chapter 100.(2)
During an inspection, cabinet inspectors may consult privately with workers as specified in Section 5 of this administrative regulation. The licensee or registrant may accompany cabinet inspectors during other phases of an inspection.(3)
If, during the inspection, an individual has been authorized by the workers to represent them during cabinet inspections, the licensee or registrant shall notify the inspectors of the authorization and shall give the workers' representative an opportunity to accompany the inspectors during the inspection of physical working conditions.(4)
The workers' representative shall be routinely engaged in work under control of the licensee or registrant and shall have received instructions as specified in Section 2 of this administrative regulation.(5)
Different representatives of licensees or registrants and workers may accompany the inspectors during different phases of an inspection if there is no resulting interference with the conduct of an inspection. However, only one (1) workers' representative at a time may accompany the inspectors.(6)
With the approval of the licensee or registrant and the workers' representative, an individual who is not routinely engaged in work under control of the licensee or registrant, for example, a consultant to the licensee or registrant or to the workers' representative, shall be afforded the opportunity to accompany cabinet inspectors during the inspection of physical working conditions.(7)
A cabinet inspector shall refuse to permit accompaniment by an individual who deliberately interferes with a fair and orderly inspection.(8)
Unless specifically authorized, an individual accompanying an inspector shall not have access to an area containing information classified by an agency of the U.S. government as a national security interest.(9)
Unless previously authorized by the licensee or registrant, a worker's representative shall not have access to an area containing proprietary information.Section 5.
Consultation with Workers during Inspection.(1)
If necessary to conduct an effective and thorough inspection, a cabinet inspector may consult privately with a worker concerning a matter of occupational radiation protection or other matter related to 902 KAR Chapter 100, licenses, or registrations.(2)
During the course of an inspection, a worker may bring to the attention of the inspectors, either orally or in writing, a past or present condition that he or she has reason to believe may have contributed to or caused a violation of the Act, 902 KAR Chapter 100, or license condition, or an unnecessary exposure of an individual to radiation from licensed radioactive material or a registered radiation machine under the licensee's or registrant's control. Any(3)
The requirements of subsection (2) of this section shall not be interpreted as authorization to disregard instructions required by Section 2 of this administrative regulation.Section 6.
Requests by Workers for Inspections.(1)
(a)
A worker or representative of workers who believes that a violation of the Act, 902 KAR Chapter 100, or a license condition exists, or has occurred in work under a license or registration with regard to radiological working conditions in which the worker is engaged, may request an inspection by giving notice of the alleged violation to the Cabinet for Health and Family Services, Radiation Health Branch.(b)
The notice shall:1.
Be in writing;2.
Set forth the specific grounds for the notice; and3.
Be signed by the worker or representative of the workers.(c)
A copy shall be provided to the licensee or registrant by the cabinet no later than at the time of inspection. If the worker giving the notice requests, his or her name and the name of individuals referred to in the notice shall not appear in the copy or on a record published, released, or made available by the cabinet, except for good cause shown.(2)
In accordance with 10(3)
A licensee, registrant, contractor, or subcontractor of a licensee or registrant, shall not discharge or discriminate against a worker because the worker has:(a)
Filed a complaint;(b)
Instituted or caused to be instituted a proceeding under 902 KAR 100:170;(c)
Testified or is about to testify in a proceeding; or(d)
Exercised an option on behalf of himself, herself, or others afforded by this administrative regulation.Section 7.
Inspections not Warranted; Informal Review.(1)
(a)
If the Cabinet for Health and Family Services, Radiation Health Branch determines, with respect to a complaint under Section 6 of this administrative regulation, that an inspection is not warranted because there are no reasonable grounds to believe that a violation exists or has occurred, the cabinet shall notify the complainant in writing of the determination.(b)
The complainant may obtain a review of the determination by submitting a written statement of position with the commissioner, Department for Public Health. The commissioner shall provide the licensee or registrant with a copy of the statement by certified mail excluding, at the request of the complainant, the name of the complainant.(c)
The licensee or registrant may submit an opposing written statement of position with the commissioner, who shall provide the complainant with a copy of the statement by certified mail.(2)
Upon the request of the complainant, the commissioner shall hold an administrative conference(3)
If the Radiation Health Branch determines that an inspection is not warranted because the requirements of Section 6(1) of this administrative regulation have not been met, the complainant shall be notified, in writing, of the determination. The determination shall be without prejudice to the filing of a new complaint meeting the requirements of Section 6(1) of this administrative regulation.Section 8.
Employee Protection.(1)
Discrimination by a cabinet licensee, an applicant for a cabinet license, a registrant or a contractor or subcontractor of a cabinet licensee, registrant, or applicant against an employee for engaging in protected activities shall be prohibited. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment.(a)
The protected activities include in part:1.
Providing the cabinet or his or her employer information about alleged violations or possible violations of requirements of 902 KAR Chapter 100;2.
Refusing to engage in a practice made unlawful under these requirements, if the employee has identified the alleged illegality to the employer;3.
Requesting the cabinet to institute action against his or her employer for enforcement of these requirements;4.
Testifying in a cabinet proceeding, before Congress, or at a federal or state proceeding regarding a provision, or proposed provision, of 902 KAR Chapter 100; and5.
Assisting or participating in, or is about to assist or participate in, a protected activity.(b)
A protected activity shall retain its protected status even if no formal proceeding is initiated as a result of the employee assistance or participation.(c)
This section shall not be applied to an employee alleging discrimination who, acting without direction from his or her employer or the employer's agent, deliberately causes a violation of the Act or the administrative regulations promulgated under the Act.(2)
An employee who believes that he or she has been discharged or discriminated against for engaging in a protected activity may seek a remedy through an administrative proceeding in the Department of Labor.(a)
The aggrieved employee shall file a complaint within 180 days after the occurrence of the alleged violation with the Kentucky Education and Labor Cabinet, Workplace Standards, Division of Wages and Hours, at https://labor.ky.gov/standards/Pages/Wages-and-Hours.aspx(b)
If warranted by the evidence presented, the Division of Wages and Hours(3)
A violation of subsections (1) or (5) of this section or Section 1(3) of this administrative regulation by a cabinet licensee, an applicant for a cabinet license, or a contractor or subcontractor of a cabinet licensee or applicant shall constitute grounds for:(a)
Denial, revocation, or suspension of the license;(b)
Imposition of a penalty; or(c)
Other enforcement action.(4)
(a)
An action taken by an employer or others that adversely affects an employee shall be predicated upon nondiscriminatory grounds.(b)
The prohibition applies if the adverse action occurs because the employee has engaged in a protected activity.(c)
An employee's engagement in a protected activity does not automatically render him or her immune from discharge or discipline for legitimate reasons, or from adverse action dictated by nonprohibited considerations.(5)
An agreement affecting the compensation, terms, conditions, or privileges of employment, including an agreement to settle a complaint filed by an employee with the Kentucky Education and Labor CabinetSection 9.
Deliberate Misconduct.(1)
This section applies to:(a)
Licensee;(b)
Registrant;(c)
Certificate of registration holder;(d)
Applicant for a license(e)
Employee of any person identified in this section; or(f)
Contractor, including a supplier, consultant, or subcontractor to any person identified in this section.(2)
Any person identified in subsection (1) of this section shall not:(a)
Engage in deliberate misconduct that causes or may have caused, if not detected, a licensee, registrant, certificate of registration holder, or applicant to be in violation of a rule, administrative regulation, order,(b)
Deliberately submit to the cabinet, a licensee, registrant, certificate of registration holder, an applicant, or a licensee's, certificate holder's, or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the cabinet.(3)
A person who violates subsection (2) of this section shall be subject to enforcement action in accordance with the procedures in 902 KAR 100:170.(4)
For the purposes of subsection (2)(a) of this section, deliberate misconduct by a person means an intentional act or omission that the person knows:(a)
May cause a licensee, registrant, certificate holder, or applicant for a license, registration, or certificate to be in violation of the rule, regulation, order or a term, condition, or limitation of a license, registration, or certificate issued by the cabinet; or(b)
Constitutes a violation or a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, registrant, certificate holder, applicant, or the contractor or subcontractor of any of them.Section 10.
(1)
(2)
STEVEN STACK, M.D., Commissioner
ERIC C. FRIEDLANDER, Secretary
APPROVED BY AGENCY: May 26, 2023
FILED WITH LRC: June 7, 2023 at 2:35 p.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on August 21, 2023, at 9:00 a.m. using the CHFS Office of Legislative and Regulatory Affairs Zoom meeting room. The Zoom invitation will be emailed to each requestor the week prior to the scheduled hearing. Individuals interested in attending this virtual hearing shall notify this agency in writing by August 14, 2023, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who attends virtually will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on this proposed administrative regulation until August 31, 2023. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to the contact person. Pursuant to KRS 13A.280(8), copies of the statement of consideration and, if applicable, the amended after comments version of the administrative regulation shall be made available upon request.
CONTACT PERSON: Krista Quarles, Policy Analyst, Office of Legislative and Regulatory Affairs, 275 East Main Street 5 W-A, Frankfort, Kentucky 40621; phone 502-564-6746; fax 502-564-7091; email CHFSregs@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Krista Quarles or Julie Brooks
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes the notices, instructions, and reports for the protection of workers who may be exposed to radiation in their employment.
(b) The necessity of this administrative regulation:
The Radiation Health Program licenses, registers, and certifies all uses of radiation, conducts inspections, reviews, and validates environmental surveillance data, manages compliance activity, and administers the state emergency response to radiological incidents and emergencies. This administrative regulation ensures workers engaged in activities that use sources of radiation are provided proper notice of the risks associated with these activities and are protected should an incident occur.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
KRS 211.842 requires the cabinet to develop and conduct programs for evaluation and control of hazards associated with the use of sources of ionizing, nonionizing, and electronic product radiation. KRS 211.844 requires the cabinet to provide by administrative regulation for the registration and licensing of the possession or use of sources of ionizing or electronic product radiation and the handling and disposal of radioactive waste.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation ensures the protection of workers engaged in activities that use sources of radiation and protects the workers’ rights during the inspection process and when reporting violations.
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
The amendment to this administrative regulation updates the annual dosage exposure notification requirements, updates the citations to report potential labor violations, and makes other changes necessary for KRS Chapter 13A compliance.
(b) The necessity of the amendment to this administrative regulation:
The amendment to this administrative regulation is necessary to ensure employees engaged in activities that use sources of radiation are properly protected.
(c) How the amendment conforms to the content of the authorizing statutes:
KRS 211.842 requires the cabinet to develop and conduct programs for evaluation and control of hazards associated with the use of sources of ionizing, nonionizing, and electronic product radiation. KRS 211.844 requires the cabinet to provide by administrative regulation for the registration and licensing of the possession or use of sources of ionizing or electronic product radiation and the handling and disposal of radioactive waste.
(d) How the amendment will assist in the effective administration of the statutes:
The amendment to this administrative regulation ensures employees are aware of health risks associated with exposure to sources of radiation and ensures employee rights are protected.
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
The Radiation Health Branch has issued approximately 400 licenses to users in the fields of medicine, industry, research, and academia, as well as approximately 164 general licenses. All licensees are required to be in compliance with this administrative regulation. This administrative regulation will also impact all employees of licensees.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
Licensees will need to be aware of the amendment to this administrative regulation and ensure they are in compliance with the notice, reports, and instructions to employee requirements.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
There will be minimal costs to the regulated entities for compliance. The cost associated with compliance include the printing of the required posted materials.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
Employees who are exposed to sources of radiation in the course of their work will be aware of the health risks associated with this exposure and will be assured protections should there be a violation of this administrative regulation.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
This is an ongoing program, there are no initial costs.
(b) On a continuing basis:
This administrative regulation does not impact costs for the agency.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
The Radiation Health Branch is funded through a combination of state general fund dollars and fees.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
An increase in fees or funding is not needed to implement the requirements of this administrative regulation.
(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees:
There are no fees established in this administrative regulation.
(9) TIERING: Is tiering applied?
Tiering is not applied as the requirements of this administrative regulation are equally applied.
FISCAL NOTE
(1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation?
The Radiation Health Branch in the Department for Public Health is the only entity that will be impacted by the amendment to this administrative regulation.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 13B.170, 194A.050(1), and 211.844.
(3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.
(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year?
This administrative regulation does not generate revenue.
(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years?
This administrative regulation does not generate revenue.
(c) How much will it cost to administer this program for the first year?
This administrative regulation will require no additional cost to administer.
(d) How much will it cost to administer this program for subsequent years?
This administrative regulation will require no additional cost to administer.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Revenues (+/-):
Expenditures (+/-):
Other Explanation:
(4) Estimate the effect of this administrative regulation on the expenditures and cost savings of regulated entities for the first full year the administrative regulation is to be in effect.
(a) How much cost savings will this administrative regulation generate for the regulated entities for the first year?
This administrative regulation does not impact the costs of the regulated entities.
(b) How much cost savings will this administrative regulation generate for the regulated entities for subsequent years?
This administrative regulation does not impact the costs of the regulated entities.
(c) How much will it cost the regulated entities for the first year?
This administrative regulation will require no additional cost to the regulated entities.
(d) How much will it cost the regulated entities for subsequent years?
This administrative regulation will require no additional cost to the regulated entities.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Cost Savings (+/-):
Expenditures (+/-):
Other Explanation:
(5) Explain whether this administrative regulation will have a major economic impact, as defined below.
"Major economic impact" means an overall negative or adverse economic impact from an administrative regulation of five hundred thousand dollars ($500,000) or more on state or local government or regulated entities, in aggregate, as determined by the promulgating administrative bodies. [KRS 13A.010(13)] This administrative regulation does not have a major economic impact.
FEDERAL MANDATE ANALYSIS COMPARISON
(1) Federal statute or regulation constituting the federal mandate.
Atomic Energy Act of 1954, 42 U.S.C. 2021, as amended, and 10 C.F.R. 19.16.
(2) State compliance standards.
As an agreement state with the Nuclear Regulatory Commission, the state is required to have a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the state covered by the proposed agreement. The state is required to adopt compliance standards for the protection of the public health, safety, and environment from hazards associated with such material which are equivalent, to the extent practicable, or more stringent than, standards adopted and enforced by the Commission for the same purpose.
(3) Minimum or uniform standards contained in the federal mandate.
42 U.S.C. 2021(a)(3) is to promote orderly regulatory pattern between the Commission and state governments with respect to nuclear development and use and regulation of byproduct, source, and special nuclear materials.
(4) Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate?
No
(5) Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements.
Not applicable as there are no stricter standards, or additional or different responsibilities or requirements.
CABINET FOR HEALTH AND FAMILY SERVICES
Department for Public Health
Division of Public Health Protection and Safety
(Amendment)
902 KAR 100:165.Notices, reports, and instructions to employees.
Section 1.
Posting of Notices to Workers.(1)
A licensee or registrant shall post current copies of the following documents relating to standards for protection against radiation:(a)
1.
This administrative regulation;2.
902 KAR 100:019, as applicable for users other than radioactive materials users; and3.
902 KAR 100:185 as applicable for radioactive material users;(b)
The license, certificate of registration, conditions or documents incorporated into the license by reference, and amendments to the license;(c)
The operating procedures for work under the license or registration; and(d)
A notice of violation involving radiological working conditions, proposed imposition of civil penalty, or order issued as authorized by 902 KAR 100:170, and responses from the licensee or registrant.(2)
If posting of a document specified in subsection (1)(a), (b), or (c) of this section is not practical, the licensee or registrant shall post a notice that describes the document and states where it may be examined.(3)
Cabinet form KR-441, Notice to Employees, incorporated by refence in 902 KAR 100:070, shall be prominently posted by a licensee or registrant.(4)
Documents, notices, or forms posted as required by this section shall:(a)
Appear in a sufficient number of places to permit an individual engaged in work under the license or registration to observe them on the way to or from a particular work location to which the document applies;(b)
Be conspicuous; and(c)
Be replaced if defaced or altered.(5)
(a)
Cabinet documents posted as required by subsection (1)(d) of this section shall be posted within two (2) working days after receipt of the documents from the cabinet;(b)
The licensee's or registrant's response shall be posted within two (2) working days after dispatch from the licensee or registrant; and(c)
The documents shall remain posted for a minimum of five (5) working days or until action correcting the violation has been completed, whichever is later.Section 2.
Instructions to Workers.(1)
An individual who is likely to receive in a year, during the course of employment, an occupational dose in excess of 100 millirems (one (1) mSV) shall be:(a)
Kept informed of the storage, transfer, or use of sources of radiation in the licensee's or registrant's workplace;(b)
Informed of potential health risks, to the individual and potential offspring, associated with exposure to radioactive material or radiation, and instructed in precautions or procedures to minimize exposure and in the purposes and functions of protective devices employed;(c)
Instructed in, and instructed to observe, to the extent within the worker's control, the applicable requirements of 902 KAR Chapter 100 and licenses issued thereunder for the protection of personnel from exposures to radiation or radioactive material;(d)
Instructed of their responsibility to report promptly to the licensee or registrant a condition that may lead to or cause a violation of the Act, 902 KAR Chapter 100, or license conditions, or unnecessary exposure to radiation or radioactive material;(e)
Instructed in the appropriate response to warnings made in the event of an unusual occurrence or malfunction that may involve exposure to radiation or radioactive material; and(f)
Informed of the radiation exposure reports that workers may request as authorized by Section 3 of this administrative regulation.(2)
In determining the individuals subject to the requirements of this section, a licensee or registrant shall take into consideration assigned activities during normal and abnormal situations involving exposure to radioactive material or radiation that can reasonably be expected to occur during the life of a licensed or registered facility. The extent of the instructions shall be commensurate with potential radiological health protection problems in the workplace.Section 3.
Notifications and Reports to Individuals.(1)
Radiation exposure data for an individual and the results of any measurements, analyses, and calculations of radioactive material deposited or retained in the body of an individual, shall be reported to the individual as specified in this section.(2)
The information reported shall include data and results obtained pursuant to cabinet regulations, orders, or license conditions as shown in records maintained by the licensee or registrant.(3)
Each notification and report shall:(a)
Be in writing;(b)
Include appropriate identifying data:1.
The name of the licensee or registrant;2.
The name of the individual; and3.
The individual's identification or Social Security number;(c)
Include the individual's exposure information; and(d)
Contain the following statement: "This report is furnished to you under the provisions of the Kentucky Cabinet for Health and Family Services' radiation administrative regulation, 902 KAR 100:165. You should preserve this report for further reference."(4)
Each licensee or registrant shall make dose information available to workers as shown in records maintained by the licensee or registrant under the provisions of 902 KAR 100:185.(5)
The licensee or registrant shall provide an annual report to each individual monitored under 902 KAR Chapter 100 of the dose received in that monitoring year if:(a)
The individual's occupational dose exceeds 1 mSv (100 mrem) TEDE or 1 mSv (100 mrem) to any individual organ or tissue; or(b)
The individual requests his or her annual dose report.(6)
At the request of a worker formerly engaged in licensed activities controlled by the licensee or registrant, each licensee or registrant shall furnish to the worker a report of the worker's exposure to radiation or to radioactive material. The report shall:(a)
Be furnished within thirty (30) days from the time the request is made, or within thirty (30) days after the exposure of the individual has been determined by the licensee or registrant, whichever is later.(b)
Cover the period of time the worker's activities involved exposure to radiation from radioactive material licensed by the cabinet; and(c)
Include the dates and locations of licensed activities in which the worker participated during this period.(7)
If a licensee or registrant is required to report to the cabinet an exposure of an individual to radiation or radioactive material, the licensee or the registrant shall also provide the individual a report on the exposure data included in the report to the cabinet. The reports shall be transmitted to the individual at a time not later than the transmittal to the cabinet.(8)
(a)
At the request of a worker who is terminating employment with the licensee or registrant that involved exposure to radiation or radioactive material during the current year, the licensee or registrant shall provide to the worker, or to the worker's designee, at termination a written report regarding the radiation dose received by that worker from operations of the licensee or registrant during the current year or fraction thereof.(b)
If the most recent individual personnel monitoring results are not available at the time of termination, a written estimate of the dose shall be provided.(c)
Estimated doses shall be clearly indicated as estimated doses.Section 4.
Presence of Representatives of Licensees or Registrants and Workers during Inspection.(1)
A licensee or registrant shall afford to the cabinet at all reasonable times opportunity to inspect materials, machines, activities, facilities, premises, and records required by 902 KAR Chapter 100.(2)
During an inspection, cabinet inspectors may consult privately with workers as specified in Section 5 of this administrative regulation. The licensee or registrant may accompany cabinet inspectors during other phases of an inspection.(3)
If, during the inspection, an individual has been authorized by the workers to represent them during cabinet inspections, the licensee or registrant shall notify the inspectors of the authorization and shall give the workers' representative an opportunity to accompany the inspectors during the inspection of physical working conditions.(4)
The workers' representative shall be routinely engaged in work under control of the licensee or registrant and shall have received instructions as specified in Section 2 of this administrative regulation.(5)
Different representatives of licensees or registrants and workers may accompany the inspectors during different phases of an inspection if there is no resulting interference with the conduct of an inspection. However, only one (1) workers' representative at a time may accompany the inspectors.(6)
With the approval of the licensee or registrant and the workers' representative, an individual who is not routinely engaged in work under control of the licensee or registrant, for example, a consultant to the licensee or registrant or to the workers' representative, shall be afforded the opportunity to accompany cabinet inspectors during the inspection of physical working conditions.(7)
A cabinet inspector shall refuse to permit accompaniment by an individual who deliberately interferes with a fair and orderly inspection.(8)
Unless specifically authorized, an individual accompanying an inspector shall not have access to an area containing information classified by an agency of the U.S. government as a national security interest.(9)
Unless previously authorized by the licensee or registrant, a worker's representative shall not have access to an area containing proprietary information.Section 5.
Consultation with Workers during Inspection.(1)
If necessary to conduct an effective and thorough inspection, a cabinet inspector may consult privately with a worker concerning a matter of occupational radiation protection or other matter related to 902 KAR Chapter 100, licenses, or registrations.(2)
During the course of an inspection, a worker may bring to the attention of the inspectors, either orally or in writing, a past or present condition that he or she has reason to believe may have contributed to or caused a violation of the Act, 902 KAR Chapter 100, or license condition, or an unnecessary exposure of an individual to radiation from licensed radioactive material or a registered radiation machine under the licensee's or registrant's control. Any written notice shall comply with the requirements of Section 6(1) of this administrative regulation.(3)
The requirements of subsection (2) of this section shall not be interpreted as authorization to disregard instructions required by Section 2 of this administrative regulation.Section 6.
Requests by Workers for Inspections.(1)
(a)
A worker or representative of workers who believes that a violation of the Act, 902 KAR Chapter 100, or a license condition exists, or has occurred in work under a license or registration with regard to radiological working conditions in which the worker is engaged, may request an inspection by giving notice of the alleged violation to the Cabinet for Health and Family Services, Radiation Health Branch.(b)
The notice shall:1.
Be in writing;2.
Set forth the specific grounds for the notice; and3.
Be signed by the worker or representative of the workers.(c)
A copy shall be provided to the licensee or registrant by the cabinet no later than at the time of inspection. If the worker giving the notice requests, his or her name and the name of individuals referred to in the notice shall not appear in the copy or on a record published, released, or made available by the cabinet, except for good cause shown.(2)
In accordance with 10 C.F.R. 19.16, if, upon receipt of the notice, the Manager, Radiation Health Branch, determines that the complaint meets the requirements established in subsection (1) of this section, and that there are reasonable grounds to believe that the alleged violation exists or has occurred, the manager of the Radiation and Health Branch shall cause an inspection to be made as soon as practicable, to determine if the alleged violation exists or has occurred. An inspection authorized by this section may not be limited to matters referred to in the complaint.(3)
A licensee, registrant, contractor, or subcontractor of a licensee or registrant, shall not discharge or discriminate against a worker because the worker has:(a)
Filed a complaint;(b)
Instituted or caused to be instituted a proceeding under 902 KAR 100:170;(c)
Testified or is about to testify in a proceeding; or(d)
Exercised an option on behalf of himself, herself, or others afforded by this administrative regulation.Section 7.
Inspections not Warranted; Informal Review.(1)
(a)
If the Cabinet for Health and Family Services, Radiation Health Branch determines, with respect to a complaint under Section 6 of this administrative regulation, that an inspection is not warranted because there are no reasonable grounds to believe that a violation exists or has occurred, the cabinet shall notify the complainant in writing of the determination.(b)
The complainant may obtain a review of the determination by submitting a written statement of position with the commissioner, Department for Public Health. The commissioner shall provide the licensee or registrant with a copy of the statement by certified mail excluding, at the request of the complainant, the name of the complainant.(c)
The licensee or registrant may submit an opposing written statement of position with the commissioner, who shall provide the complainant with a copy of the statement by certified mail.(2)
Upon the request of the complainant, the commissioner shall hold an administrative conference in accordance with 902 KAR 1:400.(3)
If the Radiation Health Branch determines that an inspection is not warranted because the requirements of Section 6(1) of this administrative regulation have not been met, the complainant shall be notified, in writing, of the determination. The determination shall be without prejudice to the filing of a new complaint meeting the requirements of Section 6(1) of this administrative regulation.Section 8.
Employee Protection.(1)
Discrimination by a cabinet licensee, an applicant for a cabinet license, a registrant or a contractor or subcontractor of a cabinet licensee, registrant, or applicant against an employee for engaging in protected activities shall be prohibited. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment.(a)
The protected activities include in part:1.
Providing the cabinet or his or her employer information about alleged violations or possible violations of requirements of 902 KAR Chapter 100;2.
Refusing to engage in a practice made unlawful under these requirements, if the employee has identified the alleged illegality to the employer;3.
Requesting the cabinet to institute action against his or her employer for enforcement of these requirements;4.
Testifying in a cabinet proceeding, before Congress, or at a federal or state proceeding regarding a provision, or proposed provision, of 902 KAR Chapter 100; and5.
Assisting or participating in, or is about to assist or participate in, a protected activity.(b)
A protected activity shall retain its protected status even if no formal proceeding is initiated as a result of the employee assistance or participation.(c)
This section shall not be applied to an employee alleging discrimination who, acting without direction from his or her employer or the employer's agent, deliberately causes a violation of the Act or the administrative regulations promulgated under the Act.(2)
An employee who believes that he or she has been discharged or discriminated against for engaging in a protected activity may seek a remedy through an administrative proceeding in the Department of Labor.(a)
The aggrieved employee shall file a complaint within 180 days after the occurrence of the alleged violation with the Kentucky Education and Labor Cabinet, Workplace Standards, Division of Wages and Hours, at https://labor.ky.gov/standards/Pages/Wages-and-Hours.aspx.(b)
If warranted by the evidence presented, the Division of Wages and Hours may order reinstatement, back pay, and compensatory damages as appropriate to the case.(3)
A violation of subsections (1) or (5) of this section or Section 1(3) of this administrative regulation by a cabinet licensee, an applicant for a cabinet license, or a contractor or subcontractor of a cabinet licensee or applicant shall constitute grounds for:(a)
Denial, revocation, or suspension of the license;(b)
Imposition of a penalty; or(c)
Other enforcement action.(4)
(a)
An action taken by an employer or others that adversely affects an employee shall be predicated upon nondiscriminatory grounds.(b)
The prohibition applies if the adverse action occurs because the employee has engaged in a protected activity.(c)
An employee's engagement in a protected activity does not automatically render him or her immune from discharge or discipline for legitimate reasons, or from adverse action dictated by nonprohibited considerations.(5)
An agreement affecting the compensation, terms, conditions, or privileges of employment, including an agreement to settle a complaint filed by an employee with the Kentucky Education and Labor Cabinet, shall not contain a provision that has the potential to prohibit, restrict, or discourage an employee from participating in protected activity, including providing information to the cabinet or to his or her employer on alleged violations or other matters within cabinet's regulatory responsibilities.Section 9.
Deliberate Misconduct.(1)
This section applies to:(a)
Licensee;(b)
Registrant;(c)
Certificate of registration holder;(d)
Applicant for a license or certificate of registration;(e)
Employee of any person identified in this section; or(f)
Contractor, including a supplier, consultant, or subcontractor to any person identified in this section.(2)
Any person identified in subsection (1) of this section shall not:(a)
Engage in deliberate misconduct that causes or may have caused, if not detected, a licensee, registrant, certificate of registration holder, or applicant to be in violation of a rule, administrative regulation, order, term, condition, or limitation of a license issued by the cabinet; or(b)
Deliberately submit to the cabinet, a licensee, registrant, certificate of registration holder, an applicant, or a licensee's, certificate holder's, or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the cabinet.(3)
A person who violates subsection (2) of this section shall be subject to enforcement action in accordance with the procedures in 902 KAR 100:170.(4)
For the purposes of subsection (2)(a) of this section, deliberate misconduct by a person means an intentional act or omission that the person knows:(a)
May cause a licensee, registrant, certificate holder, or applicant for a license, registration, or certificate to be in violation of the rule, regulation, order or a term, condition, or limitation of a license, registration, or certificate issued by the cabinet; or(b)
Constitutes a violation or a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, registrant, certificate holder, applicant, or the contractor or subcontractor of any of them.STEVEN STACK, M.D., Commissioner
ERIC C. FRIEDLANDER, Secretary
APPROVED BY AGENCY: May 26, 2023
FILED WITH LRC: June 7, 2023 at 2:35 p.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on August 21, 2023, at 9:00 a.m. using the CHFS Office of Legislative and Regulatory Affairs Zoom meeting room. The Zoom invitation will be emailed to each requestor the week prior to the scheduled hearing. Individuals interested in attending this virtual hearing shall notify this agency in writing by August 14, 2023, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who attends virtually will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on this proposed administrative regulation until August 31, 2023. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to the contact person. Pursuant to KRS 13A.280(8), copies of the statement of consideration and, if applicable, the amended after comments version of the administrative regulation shall be made available upon request.
CONTACT PERSON: Krista Quarles, Policy Analyst, Office of Legislative and Regulatory Affairs, 275 East Main Street 5 W-A, Frankfort, Kentucky 40621; phone 502-564-6746; fax 502-564-7091; email CHFSregs@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Krista Quarles or Julie Brooks
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes the notices, instructions, and reports for the protection of workers who may be exposed to radiation in their employment.
(b) The necessity of this administrative regulation:
The Radiation Health Program licenses, registers, and certifies all uses of radiation, conducts inspections, reviews, and validates environmental surveillance data, manages compliance activity, and administers the state emergency response to radiological incidents and emergencies. This administrative regulation ensures workers engaged in activities that use sources of radiation are provided proper notice of the risks associated with these activities and are protected should an incident occur.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
KRS 211.842 requires the cabinet to develop and conduct programs for evaluation and control of hazards associated with the use of sources of ionizing, nonionizing, and electronic product radiation. KRS 211.844 requires the cabinet to provide by administrative regulation for the registration and licensing of the possession or use of sources of ionizing or electronic product radiation and the handling and disposal of radioactive waste.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation ensures the protection of workers engaged in activities that use sources of radiation and protects the workers’ rights during the inspection process and when reporting violations.
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
The amendment to this administrative regulation updates the annual dosage exposure notification requirements, updates the citations to report potential labor violations, and makes other changes necessary for KRS Chapter 13A compliance.
(b) The necessity of the amendment to this administrative regulation:
The amendment to this administrative regulation is necessary to ensure employees engaged in activities that use sources of radiation are properly protected.
(c) How the amendment conforms to the content of the authorizing statutes:
KRS 211.842 requires the cabinet to develop and conduct programs for evaluation and control of hazards associated with the use of sources of ionizing, nonionizing, and electronic product radiation. KRS 211.844 requires the cabinet to provide by administrative regulation for the registration and licensing of the possession or use of sources of ionizing or electronic product radiation and the handling and disposal of radioactive waste.
(d) How the amendment will assist in the effective administration of the statutes:
The amendment to this administrative regulation ensures employees are aware of health risks associated with exposure to sources of radiation and ensures employee rights are protected.
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
The Radiation Health Branch has issued approximately 400 licenses to users in the fields of medicine, industry, research, and academia, as well as approximately 164 general licenses. All licensees are required to be in compliance with this administrative regulation. This administrative regulation will also impact all employees of licensees.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
Licensees will need to be aware of the amendment to this administrative regulation and ensure they are in compliance with the notice, reports, and instructions to employee requirements.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
There will be minimal costs to the regulated entities for compliance. The cost associated with compliance include the printing of the required posted materials.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
Employees who are exposed to sources of radiation in the course of their work will be aware of the health risks associated with this exposure and will be assured protections should there be a violation of this administrative regulation.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
This is an ongoing program, there are no initial costs.
(b) On a continuing basis:
This administrative regulation does not impact costs for the agency.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
The Radiation Health Branch is funded through a combination of state general fund dollars and fees.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
An increase in fees or funding is not needed to implement the requirements of this administrative regulation.
(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees:
There are no fees established in this administrative regulation.
(9) TIERING: Is tiering applied?
Tiering is not applied as the requirements of this administrative regulation are equally applied.
FISCAL NOTE
(1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation?
The Radiation Health Branch in the Department for Public Health is the only entity that will be impacted by the amendment to this administrative regulation.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 13B.170, 194A.050(1), and 211.844.
(3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.
(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year?
This administrative regulation does not generate revenue.
(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years?
This administrative regulation does not generate revenue.
(c) How much will it cost to administer this program for the first year?
This administrative regulation will require no additional cost to administer.
(d) How much will it cost to administer this program for subsequent years?
This administrative regulation will require no additional cost to administer.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Revenues (+/-):
Expenditures (+/-):
Other Explanation:
(4) Estimate the effect of this administrative regulation on the expenditures and cost savings of regulated entities for the first full year the administrative regulation is to be in effect.
(a) How much cost savings will this administrative regulation generate for the regulated entities for the first year?
This administrative regulation does not impact the costs of the regulated entities.
(b) How much cost savings will this administrative regulation generate for the regulated entities for subsequent years?
This administrative regulation does not impact the costs of the regulated entities.
(c) How much will it cost the regulated entities for the first year?
This administrative regulation will require no additional cost to the regulated entities.
(d) How much will it cost the regulated entities for subsequent years?
This administrative regulation will require no additional cost to the regulated entities.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Cost Savings (+/-):
Expenditures (+/-):
Other Explanation:
(5) Explain whether this administrative regulation will have a major economic impact, as defined below.
"Major economic impact" means an overall negative or adverse economic impact from an administrative regulation of five hundred thousand dollars ($500,000) or more on state or local government or regulated entities, in aggregate, as determined by the promulgating administrative bodies. [KRS 13A.010(13)] This administrative regulation does not have a major economic impact.
FEDERAL MANDATE ANALYSIS COMPARISON
(1) Federal statute or regulation constituting the federal mandate.
Atomic Energy Act of 1954, 42 U.S.C. 2021, as amended, and 10 C.F.R. 19.16.
(2) State compliance standards.
As an agreement state with the Nuclear Regulatory Commission, the state is required to have a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the state covered by the proposed agreement. The state is required to adopt compliance standards for the protection of the public health, safety, and environment from hazards associated with such material which are equivalent, to the extent practicable, or more stringent than, standards adopted and enforced by the Commission for the same purpose.
(3) Minimum or uniform standards contained in the federal mandate.
42 U.S.C. 2021(a)(3) is to promote orderly regulatory pattern between the Commission and state governments with respect to nuclear development and use and regulation of byproduct, source, and special nuclear materials.
(4) Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate?
No
(5) Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements.
Not applicable as there are no stricter standards, or additional or different responsibilities or requirements.