ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE COMMITTEE ON SCIENCE, SUBCOMMITTEE ON BASIC RESEARCH AND SUBCOMMITTEE ON ENERGY AND ENVIRONMENT
UNITED STATES HOUSE OF REPRESENTATIVES
MAY 21, 1998
Honorable Chairmen and Members of the Subcommittees:
Thank you for the opportunity to testify this morning on the important issue of external regulation of worker safety and health at Department of Energy (DOE) research and nuclear facilities. The Occupational Safety and Health Administration (OSHA) has a keen interest in this issue, both because our mission is to ensure a safe and healthy workplace for every working man and woman in America, and because a DOE transition to external regulation of occupational safety and health would have a significant impact on our agency.
OSHA is making progress in fulfilling its mission. The Bureau of Labor Statistics (BLS) announced last December that the rate of worker injuries and illnesses was at 7.4 per 100 workers, the lowest point in the history of the BLS occupational injury and illness survey. But more must be done to protect our Nation's workers. Workers still suffer over 6,000 fatalities per year from safety hazards. And, according to a recent study conducted by researchers at several major universities, there are 60,300 fatalities each year from work-related illnesses(1).
Through reinvention, OSHA is developing new strategies that leverage the agency's limited resources and, in many cases, re-shape how OSHA interacts with employers and workers to promote safe and healthy work environments. But leveraging strategies can only go so far, and taking on the new responsibilities associated with regulating DOE research and nuclear facilities could adversely affect OSHA's ability to protect other private-sector employees, absent additional resources.
You have requested OSHA's comments on the status of the external regulation pilot activities, in light of the just-released GAO report entitled Department of Energy: Clear Strategy on External Regulation Needed for Worker and Nuclear Safety. I will begin by tracing the history of OSHA's involvement with DOE, and then address the pilot programs.
History of OSHA-DOE Relationship
Since the enactment of the Occupational Safety and Health Act (OSH Act) in 1970, OSHA has had very limited involvement in safety and health matters at DOE research and nuclear facilities. That is because section 4(b)(1) of the OSH Act removes from OSHA's jurisdiction those working conditions for which another Federal agency (or a state agency acting under the Atomic Energy Act) has prescribed or enforced occupational safety and health regulations. This exemption is designed to prevent duplication of Federal effort. It has applied to the Atomic Energy Commission (AEC) and its successors, the Energy Research and Development Administration (ERDA) and DOE, because DOE and its predecessor agencies have maintained a system of self-regulation of occupational safety and health issues.
Most of the workers at DOE's "Government-Owned, Contractor-Operated" (GOCO) sites are employees of private-sector companies with DOE contracts or subcontracts. Yet because DOE has chosen to operate its own occupational safety and health program, these private employers have been exempt from OSHA enforcement for all of OSHA's 28-year existence.
We should note that DOE has adopted most of OSHA's regulations as the foundation for its own regulatory program, so many of the substantive safety and health requirements on contractors and workers are the same as they would be under OSHA jurisdiction. However, in addition to adopting OSHA regulations, DOE has developed some occupational safety and health regulations of its own, such as a more up-to-date radiation exposure standard. If OSHA were to assume jurisdiction for DOE facilities, we would need to adopt similar standards so that employee protection would not be diminished.
Since 1990, the level of our interaction with DOE has increased. At the request of Admiral Watkins, former Secretary of Energy, OSHA staff participated extensively in a review of safety and health compliance at DOE research and nuclear facilities as members of the so-called "Tiger Teams." The review led to the signing of a Memorandum of Understanding (MOU) in 1992, in which OSHA agreed to provide a wide range of technical assistance to DOE as it sought to redefine its safety and health programs. Much of the work that OSHA has undertaken since then, including participating on the 1995 DOE Advisory Committee on External Regulation, joint sponsorship of a study by the National Academy of Public Administration, and conducting pilot projects, has been carried out under the terms of the 1992 MOU.
In 1995, DOE's Advisory Committee on External Regulation (the Ahearne Committee) recommended that DOE continue to move toward complete external regulation. The Environmental Protection Agency had already assumed regulatory oversight of DOE roughly a decade earlier for environmental matters. The committee suggested that OSHA should regulate occupational safety and health at the complex, and either the Nuclear Regulatory Commission (NRC) or the Defense Nuclear Facilities Safety Board (DNFSB) should regulate the safety of DOE's reactors and other nuclear facilities. Since the Advisory Committee's report was issued, OSHA has been exploring with DOE the various elements of external regulation in which OSHA, as the regulator, would interact with DOE and its contractors and subcontractors.
Subsequent to the Advisory Committee report, OSHA, with funds provided by DOE, jointly commissioned the National Academy of Public Administration (NAPA) to clarify the roles and responsibilities OSHA and DOE would assume in a system of external regulation, and to propose a transition plan. The resulting NAPA report supported the recommendations of the Advisory Committee and provided a number of recommendations on the scope and timing of a program of external regulation. The NAPA Report included an OSHA-developed position paper on the level of resources that OSHA might need to undertake the program.
Since the 1997 report, OSHA has taken several steps to develop more detailed specifications regarding external regulation. OSHA established an internal DOE Transition Work Group with representation from all parts of the agency to discuss and make recommendations on this issue. OSHA also hired dedicated staff to work on the issue of assuming jurisdiction over DOE. In addition, recognizing that a move to external regulation could have significant impact on DOE, NRC, and the Department of Labor (DOL), we are working together to further define a process for establishing scope, timing and resource needs necessary for the transition. We expect this process to be reflected in Fiscal Year 2000 budget planning.
External Regulation To Date
OSHA has some experience regulating installations that were once within the DOE complex. OSHA assumed the responsibility for worker safety and health at gaseous diffusion plants in 1993, when the facilities at Piketon, Ohio, and Paducah, Kentucky, were transferred by Congress to the United States Enrichment Corporation under the Energy Policy Act of 1992. Under that transfer arrangement, DOE was required to assure that the facilities met OSHA standards before the transfer, and provided OSHA with some resources to initiate the additional work.
In order to deal with potential overlap of jurisdiction, OSHA has entered into two MOUs with NRC, the most recent of which was signed in August, 1996. In these documents, the two agencies have developed a protocol for handling overlapping jurisdictional issues relating to nuclear safety and worker safety and health. OSHA's experience thus far working with NRC suggests that OSHA and NRC can, with careful articulation of responsibilities, resolve any jurisdictional questions that may arise as a result of external regulation of DOE facilities.
Responsibilities and Resources
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 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.
If OSHA ultimately assumes responsibility for regulating DOE facilities, there will need to be legislative and regulatory changes. We will need resources as well. The amount will vary depending on the scope of facilities which OSHA regulates, but the costs will be large enough that we cannot absorb them. We are concerned that Congress has given OSHA new responsibilities related to our assumption of jurisdiction for DOE sites, but has not provided OSHA with commensurate resources. For example, in the Energy and Water Development Appropriations Act of 1998, Congress transferred the Formerly Utilized Remedial Action Program (FUSRAP) from DOE to the Army Corps of Engineers, which resulted in OSHA acquiring responsibility for worker safety and health at these sites. In the case of FUSRAP, OSHA will have to provide training for and develop special expertise among its inspectors, purchase expensive technical equipment, and develop new regulations or revise existing ones to provide workers with adequate protection. OSHA cannot continue to absorb responsibility for DOE sites, which present unique challenges, without additional resources.
OSHA is very concerned about maintaining vigorous protection for DOE workers. Consistent with the Advisory Committee and NAPA recommendations, we have made clear to all parties that our assumption of the responsibilities of external regulation of DOE facilities requires that we also be provided with sufficient resources to do the job. If OSHA is given the responsibility and not the resources, we would not be able to sufficiently protect workers at DOE facilities without undermining our ability to serve other private-sector workers.
While the dialogue on external regulation has been underway, DOE has also been in the process of disposing of various facilities through a program of "privatization." OSHA has formally accepted two facilities as privatized, which means DOE no longer exercises regulatory authority, as described in the 4(b)(1) exemption. These two facilities, both at the Savannah River Site, include a power plant and a landfill.
OSHA is working with DOE to develop a protocol which establishes criteria for OSHA's acceptance of jurisdiction for privatized sites. This protocol would provide both agencies with guidance on which of the various DOE sites are suitable for the shift to OSHA jurisdiction. OSHA furnished DOE a draft of that privatization protocol in July, 1997, and has been working with DOE since then to finalize the document. Resources are one issue, but there are others dealing with the presence of radiation hazards and other technical and policy areas of concern to OSHA that need to be resolved before additional transfers can occur. The types of problems encountered in the area of privatization provide some indication of those which may be encountered as we proceed with the larger issue of external regulation.
Pilot programs may provide OSHA with useful information about possible jurisdictional problems, while also allowing us to identify the pitfalls and the resource requirements for wholesale transition to external regulation. OSHA conducted a pilot program at the Argonne National Laboratory in 1996. The pilot simulated an OSHA compliance inspection, with OSHA advising Argonne and DOE of violations that were found, but not actually issuing any citations. OSHA also conducted a detailed review of Argonne's safety and health program plans. The results of this in-depth review and simulated enforcement activity found that Argonne was basically in compliance with OSHA health and safety requirements, and few problems were anticipated should OSHA become the external regulator. Argonne management expressed satisfaction with the pilot activity.
With the Argonne pilot, the Piketon and Paducah regulatory responsibility, and the prior work on the Tiger Teams, OSHA concluded that it had developed significant understanding of the DOE complex. However, certain issues remain unresolved, such as addressing radiation hazards(2), problems related to public employees working at these sites, and abatement of other lingering hazards that remain from the earlier days of the complex.
Secretary Peña recently determined that DOE needed to conduct additional pilots before committing to external regulation of nuclear safety or worker safety. OSHA has been working with DOE through a variety of channels to respond to Secretary Peña's interest in conducting additional pilots. OSHA agreed to conduct one pilot program at parts of the Oak Ridge site, including the East Tennessee Technology Park (K-25), which is a major proposed privatization action. The protocol for that pilot relies heavily on the Argonne experience.
OSHA has also independently engaged in discussions with NRC with respect to the coordination of the pilot efforts, although we have not participated in the DOE/NRC working group managing the pilot programs. We have expressed our desire to monitor and observe the NRC Pilot at Oak Ridge, which is operating separately from the OSHA Pilot. We anticipate working further with NRC in connection with their pilot at Oak Ridge as we proceed with our own activities. In addition, we expect to coordinate our efforts with NRC at other pilot sites, should we participate with DOE in additional pilots.
We believe that if there are any further pilots, they should be focused on different aspects of DOE activities that might be subject to external regulation. For example, OSHA has already completed an effective pilot at a National Laboratory. Therefore, future pilots would ideally present different compliance problems, and involve production facilities or a different kind of environmental cleanup site. Of course, resources are a concern - OSHA believes the interests of workers currently under OSHA's jurisdiction may suffer if OSHA conducts additional DOE pilot projects at the expense of our existing compliance program activities.
OSHA is deeply interested in the issue of DOE transition to external regulation of worker safety and health, and is exploring options with DOE and NRC. External regulation could bring the benefit of improved worker protection for employees at DOE sites. But this benefit will only occur if the overall approach to transition is carefully considered, and if OSHA is provided adequate resources to assume these considerable new responsibilities and the time to ensure an orderly transition.
Footnote (1) J. Paul Leigh, Steven B. Markowitz, Marianne Fahs, Chonggak Shin, Philip J. Landrigan, "Occupational Injury and Illness in the United States," Arch Intern Med., CLVII (July, 1997),1557. (Back to Text)
Footnote (2) Protecting workers from radiation exposure is a very significant concern. OSHA and NAPA concluded that OSHA's general industry radiation protection standard lacks the level of protection now afforded the workers at DOE under that Agency's radiation regulation. We are currently focusing on ways to expedite a process for OSHA to adopt the DOE standard for the complex. Until that is accomplished, it is OSHA's view that we should not assume the lead agency role in protecting employees from radiation hazards. (Back to Text)