DEPUTY ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE SUBCOMMITTEE ON ENERGY AND POWER
OF THE COMMITTEE ON COMMERCE
U. S. HOUSE OF REPRESENTATIVES
MARCH 22, 2000
Mr. Chairman, Members of the Subcommittee:
Thank you for the opportunity to testify this morning on the important issue of external regulation of worker safety and health for private-sector employees at facilities owned or operated by the Department of Energy. This issue is of great interest and importance to the Occupational Safety and Health Administration in view of the Department of Labor's mission to assure that every working man and woman in the Nation is provided with safe and healthful working conditions. We therefore appreciate your keen interest in this matter.
OSHA has undertaken a number of cooperative projects with DOE to better understand the effect of external regulation on worker safety. Before I discuss those with you, however, I want to briefly describe OSHA's legislative authority at DOE facilities, and to summarize some of major events and reports on external regulation.
OSHA Jurisdiction at DOE Sites
Section 4(b)(1) of the Occupational Safety and Health Act of 1970 (OSH Act) removes from OSHA's coverage working conditions for which another Federal agency (or State agency acting under the Atomic Energy Act) has prescribed or enforced safety and health regulation. This exemption is designed to prevent the duplication of Federal effort. The section 4(b)(1) exemption currently applies to DOE.
Most of the workers at DOE sites are employees of private-sector companies with which DOE contracts or subcontracts. These private employers are exempt from OSHA enforcement, because DOE has chosen to prescribe its own safety and health requirements. This was also the case with DOE's predecessor agencies, the Atomic Energy Commission and the Energy Research and Development Administration.
In any discussion of external regulation, OSHA is particularly concerned to ensure that the level of protection we would provide is equal to or greater than that now provided under DOE coverage. DOE has adopted most of OSHA's regulations as the foundation for its own regulatory programs, so many of the substantive safety and health requirements for DOE contractors are the same as they would be under OSHA. However, in addition to adopting OSHA regulations, DOE has developed some occupational safety and health regulations of its own, such as more up-to-date radiation and chemical exposure standards, as well as firearm and explosives safety standards. If OSHA were to assume authority at DOE facilities, we would need to adopt similar requirements so that employee protection would not be diminished. It is important to understand that even if OSHA becomes the external regulator of worker safety and health at DOE sites, that does not make OSHA the manager of safety and health at the DOE sites. Under the OSH Act, the primary compliance responsibility still rests with the contractors and subcontractors, and, to some extent, with DOE as the site owner, to provide safe and healthful workplaces and to comply with OSHA's regulations and standards.
Background on External Regulation
OSHA's interaction with DOE has increased since the early 1990s, when OSHA was engaged in a number of so-called "Tiger Team" reviews of DOE sites. In 1995, the DOE Advisory Committee on External Regulation of Department of Energy Nuclear Safety issued its report entitled "Improving Regulation of Safety at DOE Nuclear Facilities." The report concluded that, although DOE could regulate its own operations, it was not viewed by the public as credible, and therefore recommended the creation of a system of external regulation. Specifically, the Advisory Committee noted that OSHA should regulate all worker protection issues at DOE nuclear facilities, except when that regulation would significantly interfere with maintaining facility safety (e.g., if a nuclear chain reaction was possible.) In such cases, the Advisory Committee recommended that the designated nuclear facility safety agency, such as the Nuclear Regulatory Commission (NRC) or the Defense Nuclear Facilities Safety Board, should regulate worker safety and health issues under the Atomic Energy Act (AEA).
A subsequent DOE working group reviewed the Advisory Committee's recommendations and concurred with their findings on a number of issues, including those regarding OSHA. Another report, issued in 1997 by the National Academy of Public Administration, also concluded that OSHA should have jurisdiction for occupational safety and health, and made recommendations on a host of policy and implementation issues that would need to be addressed to effect this transfer.
The Department of Labor and OSHA have previously stated that external regulation, if authorized, needs to be done in an orderly way with reasonable time frames. Transition must be implemented without disruption to OSHA's ongoing programs, and the resource requirements to address this responsibility need to be assessed.
OSHA/DOE Pilot Projects
OSHA has completed three major pilot projects at DOE sites. In 1996, we completed a pilot project at Argonne National Laboratory. More recently, in 1998, OSHA conducted a large scale pilot at Oak Ridge, Tennessee, which included both the Oak Ridge National Laboratory and the East Tennessee Technology Park, formerly known as the K-25 site.
In January, 1999, OSHA conducted a pilot project at the Lawrence Berkeley National Laboratory in California. The OSHA activities under the Berkeley pilot project were incorporated into an ongoing N RC pilot project that had been underway at the Berkeley site for approximately one year. Representatives of Cal-OSHA, the OSHA-approved California state occupational safety and health program, also participated in the Berkeley pilot project.
OSHA had three objectives for the recent pilot projects:
- to gain first hand information about both sites, in order to better assess the nature and severity of the hazards, as well as assess the adequacy of OSHA's standards, training, and staff expertise to address them;
- to assess the potential impacts of external regulation on the agencies involved and approximate what would occur on an actual OSHA visit under external regulatory authority; and
- to provide a forum for OSHA and NRC to evaluate regulatory interface issues at DOE sites, since both agencies have a potential role in radiation safety at the sites.
OSHA inspected only 16 individual facilities at Oak Ridge and Berkeley. The two pilot sites were far too large for OSHA to attempt wall-to-wall inspections of all the individual buildings and facilities at the two sites. Thus, we selected a representative mix of operations to inspect.
At both Oak Ridge and Berkeley, OSHA conducted simulated inspections to study the potential impacts of external regulation. These simulated inspections, like actual OSHA inspections, included:
- opening and closing conferences with employers and employees,
- physical walk-throughs of the work sites to identify hazards, and
- the preparation of simulated citations and penalties.
OSHA also conducted post-inspection informal conferences with DOE contractor employers and workers to discuss cited hazards, simulated citations and penalties, abatement methods and time frames, and other items regarding the inspection.
OSHA prepared simulated citations and proposed penalties for the University of California, the site contractor, even though OSHA does not currently have legislative authority to enforce penalties against State governments and their subdivisions. OSHA also prepared simulated citations and proposed penalties for DOE, the facility owner, even though OSHA does not currently have legislative authority to enforce penalties against federal agencies such as DOE. I would note, Mr. Chairman, that it has been OSHA's experience that worker's safety and health are best protected when OSHA has the ability to fine both the facility owner who controls the worksite and contractors working at the site.
OSHA also evaluated the safety and health programs at the two sites. A site's safety and health program is a good measure of management's commitment and employees' involvement in safety and health matters at the site. These evaluations were designed to determine whether DOE contractors have effective systems in place to identify and control hazards, record safety and health problems, and train employees.
So, what did OSHA learn from its participation in these pilot activities? Our overall conclusion from both the Oak Ridge and Berkeley pilots is that there are a number of legislative policy, logistical, and resource issues that must be addressed for external regulation to be accomplished in an orderly manner. However, none of the problems or issues is viewed as insurmountable; and with careful and coordinated planning within the Administration and with Congress, external regulation of DOE sites for occupational safety and health is an achievable objective.
The pilot projects demonstrated clearly to OSHA that external regulation would have a significant impact on DOE's current operating practices due to the existence of legacy hazards. Legacy hazards are site hazards that have been self-identified by DOE, but not corrected because of budget constraints. Limitations on available budgetary resources lead DOE to prioritize its treatment of identified hazards based on their potential severity and likelihood of occurrence. When DOE first identifies hazards, it may not be able to correct them right away. Rather, it will prioritize the hazards, take appropriate interim measures, and then attempt to obtain full funding to fully address the hazards permanently. Until DOE eliminates such hazards, they are known as "legacy hazards."
Any move toward external regulation must include a careful assessment of these legacy hazards, and a plan for abating them. The cost of correcting legacy hazards is likely to be significant, but it is important to recognize that these hazards need to be addressed independent of external regulation and thus should not be considered a cost of external regulation by OSHA.
The pilot projects also highlighted the fact that OSHA and DOE evaluate the seriousness of safety and health hazards differently. OSHA found a number of hazards that DOE would consider a low priority, but which OSHA would classify as serious. OSHA places greater weight on the severity of a possible injury or illness in assessing its seriousness. For example, OSHA considers an electrocution hazard as serious even if there is a very small chance it would occur. In assessing the same hazard, however, DOE factors in an estimate of the probability that an event would occur, assigning lower priority to hazards that it believes are less likely to occur.
The OSHA-simulated inspections identified 75 violations at Oak Ridge and 62 at Berkeley. This number of violations is slightly higher than average for an OSHA inspection. OSHA classified many of the violations as serious.
OSHA also evaluated the adequacy of its own standards. The majority of hazards found at DOE sites are addressed by existing OSHA standards and requirements. A principal exception is the OSHA standard for ionizing radiation, which needs to be upgraded. Another area where OSHA may need to work on a new standard for DOE sites is Firearms and Explosives, which are not specifically addressed by current OSHA regulations.
OSHA's review of the sites' safety and health programs revealed that DOE and its contractors have implemented generally good worker safety and health programs. However, both pilot sites could be improved. For example, based on OSHA's abbreviated analysis, we do not believe either site would be eligible for participation in OSHA's Voluntary Protection Program. VPP participants are a select group of facilities that have designed and implemented outstanding health and safety programs.
Key to an excellent safety and health program is employee participation. The pilots did not find the level of employee involvement in safety and health issues at these research-related facilities that OSHA would expect to find in an excellent safety and health program. Workers were engaged to a degree, but in general, occupational safety and health is not as integral a part of the site work as OSHA would require under VPP.
Other areas OSHA identified as needing improvement include: record keeping discrepancies and the increased integration of subcontractors into the safety and health program at Oak Ridge, and the need for a stronger, more visible industrial hygiene program at Berkeley. Injury and illness rates at Oak Ridge and Berkeley were also above the national average.
Funding for Pilot Projects and Other Activities
As you know Mr. Chairman, in Fiscal Year 1999, Congress provided for DOE to transfer $1 million to OSHA to conduct pilot programs and other activities at DOE facilities. OSHA spent a small portion of these funds to undertake the pilot project at Berkeley in January, 1999. In the absence of additional pilot projects for the remainder of the fiscal year, however, OSHA and DOE mutually agreed to utilize the remaining funds to undertake other activities that would assist us in preparing for external regulation.
OSHA used the funds for three projects: development of training materials for OSHA compliance officers; a study of background information on ionizing radiation; and a comparison of OSHA's Voluntary Protection Program (VPP) to that implemented by DOE. We are working with a contractor to develop materials that will prepare our compliance staff to effectively deal with issues they will confront if we assume responsibility for DOE sites. For example, we would like to enhance the skills and knowledge of the agency's industrial hygienists regarding radiation.
In addition, OSHA has funded a study of ionizing radiation that the agency could use to update our radiation safety and health standard. OSHA's ionizing radiation standard is out of date and needs to be revised. As an interim measure, OSHA has proposed that any plan for external regulation needs to include legislation that would allow OSHA to implement the current DOE or NRC rule at DOE sites as an interim final standard while OSHA proceeds with rulemaking on a final standard. This would ensure that workers at DOE sites under OSHA coverage would not be subject to less stringent radiation regulations under external regulation by OSHA, until the agency is able to produce a final rule.
OSHA also funded an analysis of the DOE VPP program. The analysis is expected to highlight the unique aspects of the DOE program and provide OSHA a basis for developing a policy on the possible acceptance of DOE VPP sites into the OSHA VPP program under external regulation.
Congress also provided for DOE to transfer $1 million in Fiscal Year 2000 funds to OSHA. We are currently discussing its use with DOE. OSHA has proposed to use the funds for full-time positions in the field and the National Office to deal with enforcement and related issues at non-Atomic Energy Act DOE sites for which OSHA currently has jurisdiction, and to evaluate privatized facilities for potential OSHA regulation.
On July 13, 1999, Assistant Secretary Jeffress sent a letter to Dr. Michaels at DOE clarifying OSHA's position on safety and health jurisdiction at DOE-owned sites that are not regulated under the Atomic Energy Act. OSHA has agreed with DOE that we have jurisdiction for safety and health enforcement at these facilities. DOE estimates that more than 9,000 Federal and contract employees at dozens of sites are covered.
Mr. Chairman, you have asked for comments on three bills: H.R. 3383, which would eliminate the exemption from civil penalties for nuclear safety violations by non-profit DOE contractors; H.R. 3906, which seeks to strengthen internal security oversight within the Department; and H.R. 3907, which would establish external safety regulation over DOE facilities. We have no comment on H.R. 3906, because it does not appear to impact OSHA's program. Based on our preliminary review, we also have no comment on H.R. 3383, since it applies to enforcement under the Atomic Energy Act. OSHA conducts its enforcement activity under the authority of the Occupational Safety and Health Act of 1970.
H.R. 3907, on the other hand, would significantly impact OSHA. It would transfer to OSHA from DOE regulatory and enforcement responsibilities relating to matters covered by the Occupational Health and Safety Act of 1970 with regard to all facilities owned or operated by DOE. OSHA would share these responsibilities with NRC for workplace hazards that include radiological components. OSHA and NRC would be required to enter into a memorandum of understanding that would govern the exercise of our respective authorities over nuclear safety and occupational health and safety at DOE owned or operated facilities, and transmit the memorandum to Congress by January 1, 2001. The overall effective date for the transfer of authority to OSHA from DOE would be October 1, 2001.
OSHA has not taken a position regarding the desirability of external regulation. Rather, the agency has engaged in pilot projects and other activities to gain a better understanding about the implications of external regulation on OSHA's program and resources. At this time, in light of the numerous unresolved issues associated with a transition to external safety regulation, the potential costs of such a transition to OSHA, and the short amount of time we have had to examine H.R. 3907, we are not yet prepared to take a position on the bill.
One issue that requires careful review by all parties involved is resources. In the past OSHA has produced resource estimates for the assumption of safety and health jurisdiction for the DOE complex. These estimates need to be updated and refined based on current information indicating exactly what sites would be transferred. The coverage of defense-related activities on these sites also needs to be examined, in light of the broad scope of H.R. 3907. Beyond resource issues, there are security issues and other matters that need to be addressed.
Finally, we note that H.R. 3907 refers to section 211 of the Energy Reorganization Act of 1974. On March 14, 2000, the Department of Labor and the Nuclear Regulatory Commission jointly transmitted proposed legislation to the Congress recommending that the worker protections in section 211 be strengthened. A copy of that transmittal is attached to this testimony.
In closing, Mr. Chairman, it is our view that OSHA's regulation of occupational safety and health at DOE sites should be authorized only if such action would lead to better protection for workers. A number of studies and advisory groups have in fact concluded that employees would benefit from external regulation of occupational safety and health.
The recent pilot projects have reinforced our position that external regulation is achievable. While OSHA is not seeking the additional responsibility for enforcement at DOE sites, the agency has for several years undertaken a variety of cooperative projects and activities with DOE to prepare for external regulation, including the recent pilot projects. We must reiterate our caution, however, that if the transition is to be successful, it must be conducted in an orderly way, with reasonable time frames to avoid unnecessary disruption to OSHA's other important ongoing programs, and resource requirements need to be assessed.