STATEMENT OF JEROLD R. MANDE
DEPUTY ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE SUBCOMMITTEE ON ENERGY AND ENVIRONMENT
OF THE COMMITTEE ON SCIENCE
U. S. HOUSE OF REPRESENTATIVES
JULY 22, 1999

Honorable Chairman and 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 national research laboratories and other worksites owned by the Department of Energy (DOE). This issue is of great interest and importance to the Occupational Safety and Health Administration (OSHA) in keeping with our mission to assure that every working man and woman in the Nation is provided with safe and healthful working conditions.

Since testifying before the Subcommittee on this subject last year, OSHA has continued to undertake a number of cooperative projects with DOE to better understand the potential implications of external regulation on our agency and to prepare for that eventuality. You particularly asked to hear about the results of pilot projects that we have conducted recently with DOE and the Nuclear Regulatory Commission (NRC). Before I discuss those with you, I believe it would be useful to briefly describe OSHA's legislative authority as it applies to DOE facilities and to summarize some of the 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 authority those 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 duplication of federal effort. The section 4(b)(1) exemption currently applies to DOE jurisdiction because DOE regulates occupational safety and health at its Government-Owned, Contractor-Operated (GOCO) sites.

Most of the workers at these sites are employees of private-sector companies with which DOE contracts or subcontracts. Yet because DOE has chosen to operate its own occupational safety and health programs, these private employers are exempt from OSHA enforcement. This was also the case with DOE's predecessor agencies, the Atomic Energy Commission and the Energy Research and Development Administration.

A particular concern of OSHA in any discussion of external regulation is to ensure that the level of protection we would provide under external regulation 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 and 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 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

As OSHA noted to the Subcommittee last year, our 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. This was followed by the announcement of former Energy Secretary O'Leary in 1995, that DOE would seek transition of the DOE complex to external regulation. Later that same year, 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 DOE could not credibly regulate its own operations and urged 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 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 consistently have believed 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 Pilot Projects at DOE Sites

In 1996, OSHA participated in a pilot project at Argonne National Laboratory that provided a baseline for subsequent pilots and work on external regulation. Since last testifying before this committee, OSHA has completed two major pilot projects at DOE sites. In the summer of 1998, OSHA conducted a large scale pilot at Oak Ridge, Tennessee, which included both the Oak Ridge National Laboratory (ORNL) and the East Tennessee Technology Park (ETTP), formerly known as the K-25 site.

In January 1999, OSHA conducted another pilot project at the Lawrence Berkeley National Laboratory (LBNL) in California. The OSHA activities under the Berkeley pilot project were incorporated into an ongoing NRC pilot project that had been underway at the Berkeley site for approximately one year. Representatives of the OSHA-approved state program (Cal-OSHA) also participated in the Berkeley pilot project.

From OSHA's perspective, the underlying objectives of both pilot projects were:

• 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 better assess the potential impacts of external regulation on the agencies 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. (Because of scheduling difficulties, OSHA was unable to undertake this objective at Oak Ridge; however, OSHA and NRC conducted productive policy discussions on this subject at Berkeley.)

Furthermore, as part of the Oak Ridge pilot project, OSHA examined the potential impact of site access and security clearance issues on OSHA's ability to conduct activities onsite under external regulation. OSHA is concerned that under external regulation, contractors could use site-specific training issues and the need for security clearances to hinder OSHA access to the site. We believe that DOE's active involvement in assisting OSHA with these matters would be essential to make sure this does not occur under external regulation.

At both Oak Ridge and Berkeley, OSHA utilized simulated inspections as the primary method 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 walkthroughs of the worksites to identify hazards, and the preparation of simulated citations and proposed penalties. Although the citations and penalties in this simulated effort were not enforceable, OSHA also conducted post-inspection informal conferences with DOE contractor employers and workers to discuss cited hazards, proposed penalties, abatement methods and time frames, and any other items regarding the inspection.

For planning and logistical purposes, OSHA and DOE found it necessary to jointly identify specific areas in advance for inspection. In the case of Oak Ridge, OSHA conducted pre-pilot scoping visits to help the agency assess its resource needs for the simulated inspection. These "advance notice" aspects of the pilot projects were a significant deviation from OSHA's typical inspection process, and need to be considered in interpreting results of the pilots. Ordinarily, OSHA inspections are unannounced.

OSHA inspected 16 individual facilities at Oak Ridge and also at Berkeley. The pilot sites were far too large for OSHA to attempt wall-to-wall inspections of all the individual buildings and facilities. Thus, our selection process was designed to identify a good mix of operations and provide a cross section of the work at the site. For example, the simulated inspections covered typical private sector activities, such as machine shops, construction operations, environmental cleanup activities, radiation and non-radiation areas, and laboratory operations, just to name a few.

At Berkeley, OSHA also developed simulated citations and proposed penalties for some hazards to DOE as facility owner, even though OSHA does not currently have legislative authority to enforce penalties against other federal agencies such as DOE. It has been OSHA's experience that workers' 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. In addition, in the case of Berkeley, OSHA would be unable under current legislative authority to enforce against the current site contractor, the University of California, which is an agency of the State government. State governments and their subdivisions are generally not considered employers for the purposes of the OSH Act and are currently not subject to enforcement by Federal OSHA. Similarly, although many of the DOE GOCO facilities are located in States, such as California, that operate their own OSHA program and exercise jurisdiction over State employees, they would probably not now have authority to regulate at such federal instrumentalities should external regulation occur.

Both the Oak Ridge and the Berkeley pilot projects also included a safety and health program evaluation component. OSHA wanted to determine the level of management commitment and employee involvement in safety and health at the sites. The evaluations also were designed to determine whether DOE contractors have effective systems in place to identify and control hazards, whether safety and health records are being kept appropriately, and if employee training is adequate.

OSHA used the general approach that we employ for conducting evaluations of employers under the Voluntary Protection Programs (VPP). VPP recognizes employers who achieve excellence in safety and health, and thereby become models for other employers to emulate. In the interests of time and resources, the VPP approach was modified and abbreviated in the pilot projects. Nonetheless, the evaluations did include careful reviews of the sites' written policies and procedures to determine how their safety and health programs are expected to operate. OSHA augmented these paper reviews with numerous interviews with managers and employees to help determine how the safety and health programs operate in practice. OSHA also examined the sites' worker exposure and medical records, and conducted assessments of the sites' medical services. While OSHA found safety and health programs in place at the pilot sites, most needed improvement as discussed below.

So, what did OSHA learn from its participation in these pilot activities? Our overall conclusion from both the Oak Ridge and Berkeley pilots (as well as the pilot project conducted at Argonne National Laboratory in 1996) 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, from OSHA's perspective, none of the problems and issues is insurmountable and with careful and coordinated planning within the Administration and with Congress, external regulation of DOE sites for occupational safety and health is, in our opinion, an achievable objective.

The pilot projects clearly demonstrated to OSHA that external regulation would have a significant impact on DOE's current operating practices and that DOE's approach to hazard-abatement decisions is often driven by federal budget concerns. If DOE identifies hazards and is unable to correct them right away, it will prioritize the hazards, take appropriate interim protective measures, and then attempt to obtain funding to address the hazards permanently.

Because there are a number of unabated hazards at DOE sites, all parties must recognize the need for careful consideration of appropriations in any move to external regulation. We are also concerned that the high projected costs of correcting these hazards might be attributed incorrectly to OSHA, rather than to the fact that necessary corrections have yet to be made.

The pilot projects also highlighted 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 would be classified as serious by OSHA. During the pilot project, OSHA safety and health staff informally reviewed the Oak Ridge list and determined that many of these issues would be classified by OSHA as serious in an actual OSHA citation. OSHA places great weight on the severity of a possible outcome in assessing the seriousness of a particular hazard, i.e. the ability of the hazard to cause serious physical harm or death. For the same hazard, DOE factors into this equation an estimate of the probability that an event would occur, assigning lower priority to hazards that might be less likely to occur.

The OSHA-simulated inspections identified 75 alleged violations at Oak Ridge and 62 at Berkeley. Many of these were classified as serious by OSHA. Based on the inspection results, OSHA believes that the majority of hazards found at DOE sites are addressed by existing OSHA standards and requirements, and the General Duty Clause, section 5(a)(1) of the OSH Act. A principal exception, as noted, 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 in the case of Firearms and Explosives, which are not specifically addressed by current OSHA regulations.

The pilot safety and heath program evaluations revealed that DOE and its contractors have implemented generally good worker safety and health programs. However, the pilot sites could all be improved and, based on OSHA's abbreviated analysis, we do not believe any of them would currently be eligible for participation in OSHA's VPP. A consistent finding at all pilot sites was lack of employee involvement in safety and health issues to the breadth and depth that OSHA would expect to find in an excellent safety and health program. Workers are 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 in an excellent VPP site. OSHA identified other areas for improvement, including the need to address recordkeeping discrepancies at ETTP, the increased integration of subcontractors into the safety and health program at ORNL, and the need for a stronger, more visible industrial hygiene program at Berkeley. Injury and illness rates at ORNL and Berkeley were above the national average, and OSHA believes that the rates at ETTP will also prove to be above the average, once the site's recordkeeping discrepancies have been corrected.

Funding for Pilot Projects and Other Activities

The Fiscal Year 1999 appropriations bill for energy and water development provides for DOE to transfer $1 million to OSHA for "conducting pilot programs and other activities necessary to simulate the transition of regulatory authority over occupational safety and health at DOE facilities." OSHA utilized a small portion of these funds to undertake the pilot project at LBNL in January. OSHA was in discussions with DOE regarding the next pilot projects, when Secretary of Energy Richardson announced that additional pilot projects would not occur. OSHA's objective at that time was to initiate a large scale pilot project at a non-laboratory site, since we had already conducted pilots at three laboratories and believed that a pilot at a major nuclear site was advisable.

In the apparent 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 is making arrangements to use the funds to develop training materials for OSHA compliance officers regarding radiation issues, in particular to provide the agency's industrial hygienists with additional skills and knowledge to conduct compliance activities at DOE sites, in the event that external regulation is authorized.

In addition, OSHA plans to fund a study of ionizing radiation that the agency could use in future rulemaking action for an updated safety and health standard. We have noted publicly on several occasions, and the recent pilot projects have confirmed, that OSHA's current 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 finalize an updated final rule.

OSHA also plans to analyze the DOE VPP program, which is similar, but not identical to the OSHA program. The analysis would 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 program under external regulation.

OSHA also may utilize a small amount of the funds to conduct activities to implement a memorandum of understanding (MOU) regarding DOE privatized facilities and operations. The MOU, which is currently in draft and nearing completion, would establish procedures to formally transfer to OSHA safety and health enforcement authority for those privatized facilities and operations located on DOE sites that DOE has leased to private sector employers who are not conducting activities on behalf of DOE.

The conditions of employees at these privatized facilities are of great concern to OSHA, since they presently are not covered by the full range of DOE protections that are afforded to GOCO workers. In fact, walkthroughs of privatized facilities and operations conducted during our Oak Ridge pilot project identified numerous safety and health violations, many of which OSHA considers serious. OSHA classified two of the hazards as imminent danger, and DOE made sure they were corrected.

The draft MOU would provide for DOE to initiate transfer action to OSHA, and OSHA would have the option of visiting the facility for a pre-transfer visit before publishing a Federal Register notice formally accepting jurisdiction for the facility or operation. Owing to OSHA's current lack of an updated radiation standard, DOE would not initiate transfer for facilities or operations where there are potential employee radiation exposures.

OSHA recently clarified to DOE the agency's position on safety and health jurisdiction at DOE-owned sites that are not regulated under AEA. These include facilities such as fossil energy sites, power marketing administration sites, and sites under the Formerly Utilized Sites Remedial Action Program (FUSRAP). Absent any other law that might trigger 4(b)(1) preemption, OSHA has agreed with DOE that we have jurisdiction for safety and health enforcement at these facilities.

Conclusion

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.

OSHA has employee safety and health as its single focus, and has implemented policies and procedures that are designed specifically for the protection of workers. In addition, the agency has developed a high level of expertise and has implemented comprehensive regulations to address most of the safety and health hazards that are found at DOE work sites.

The recent pilot projects have reinforced our position that, from OSHA's perspective, external regulation is an achievable objective. While OSHA is not seeking and has not actively sought the additional responsibility for enforcement at DOE sites, the agency has for several years undertaken a number of cooperative projects and activities with DOE to prepare for this eventuality, 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.

That concludes my prepared statement, Mr. Chairman. I would be pleased to respond to your questions.