February 4, 1974

Honorable Dixie Lee Ray
Chairman
U.S. Atomic Energy Commission
Washington,D.C. 20545

Dear Madam Chairman:

This is in response to your letter of January 2, 1974, in which you assert that the Atomic Energy Commission possesses and exercises express statutory authority, which by operation of law under the terms of section 4(b)(1) of the Williams-Steiger Occupational Safety and Health Act of 1970 (OSHA), would preclude the application of OSHA to working conditions of private AEC contractors performing contractual operations in facilities owned or leased by the AEC.

Among other documents, you enclosed in your letter a memorandum of law signed by the AEC General Counsel, Mr. Marcus Rowden, in which he developed the AEC's interpretation that the Atomic Energy Act of 1954, as amended, precluded the application of OSHA as I described it in the paragraph above. Mr. Rowden relies principally on section 161(i)(3) of the 1954 AEC Act which provides:

In the performance of its functions the Commission is authorized to...

(i) prescribe such regulations or orders as it may deem necessary...

(3) to govern any activity authorized pursuant to the Act, including standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and minimize danger to life or property.

Mr. Rowden included some legislative history plus arguments that the above section makes it clear in the Commission's view that section 4(b)(1) of OSHA by operation of law renders OSHA inapplicable to the working conditions of AEC contractor employees working in Government-owned or -leased contractor operated facilities as long as, and to the extent that, AEC prescribes and enforces both radiological and nonradiological occupational safety and health standards.

We requested the legal memorandum from the AEC General Counsel for the fundamental and critical reason that the Department of Labor possesses no authority to interpret the provisions of statutes administered and enforced by other agencies, or conversely and more specifically, that the AEC has the primary responsibility and prerogative of interpreting the terms of the Atomic Energy Act of 1954, as amended, which it enforces and administers.

While we lack the authority to interpret the AEC statute we may, of course, make a judgement in this matter as it relates to section 4(b)(1) of OSHA. In our judgement the AEC General Counsel's memorandum is a clear and reasoned presentation of your agency's interpretation of the germane provision of the Atomic Energy Act. We accept the conclusion reached in the memorandum of the AEC General Counsel that section 161(i)(3) of the Atomic Energy Act of 1954, as amended, would, as interpreted by Mr. Rowden, preclude the application of OSHA by operation of law under the terms of section 4(b)(1) of OSHA to the extent that the AEC issues safety and health standards and enforces those standards under its contractual authority pursuant to the AEC statute.

I note that in your regulations contained in the Immediate Action Directive, dated December 20, 1973, you include OSHA Construction Safety Standards (29 CFR Part 1925). We assume that AEC would enforce these standards as to that type of construction activity which would be performed in already occupied AEC-owned or -leased facilities, but would not enforce those standards in the case of construction activity conducted in initial construction of the facility to be owned or to be leased by AEC after the construction. My assumption is based on the fact that initial construction activity is not related to the uses to which the facility will later be put by the AEC- GOCO contractors. Therefore, such initial construction activity is not within the ambit of your interpretation of the AEC statutory authority. If my assumption is not in accord with your views, please let me know. However, my raising this question does not affect our understanding of the AEC General Counsel as to the nonapplication of OSHA to the other GOCO operations which I have already fully discussed.

Again, in an effort to reply to you as quickly as possible without raising delaying issues, I would agree that the former Labor Department-AEC agreement as to Walsh-Healey cooperation is still essentially viable. We must, however, bring the former agreement up to date in order to reflect changes brought about by the enactment of OSHA. This new version of the former agreement involves only minor technical changes, so I will not hold up my response because of minor legal matters that can be handled later between our respective legal staffs.

Before closing, I would also request that you furnish us with a list specifying all AEC-GOCO contractors to whose working conditions OSHA does not apply under the terms of your interpretation of the AEC Act. Unless we have a list, we cannot ascertain the parameters of the jurisdiction you assert for AEC.

Sincerely,

Secretary of Labor