REMARKS OF JOSEPH A. DEAR,
ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH,
BEFORE THE US HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON BASIC RESEARCH,
THE SUBCOMMITTEE ON ENERGY AND ENVIRONMENT, AND THE COMMITTEE ON SCIENCE

SEPTEMBER 6, 1995

I am pleased to have the opportunity to comment on two bills that have come before the Subcommittees for consideration: H.R. 2142, the "Department of Energy Laboratory Missions Act," and H.R. 1510, the "Department of Energy Laboratory Efficiency Improvement Act." These bills would shift the responsibility for enforcing safety and health regulations at certain Government-Owned, Contractor-Operated (GOCO) laboratories from the Department of Energy (DOE) to the Occupational Safety and Health Administration (OSHA).

As requested by the Subcommittees, OSHA has analyzed these bills to determine their impact on the agency and what resources would be needed in order to carry out the additional responsibilities the proposed legislation would place on OSHA. We have also considered the jurisdictional issues raised by the bills and whether any statutory changes would be necessary in order for Federal OSHA to assume responsibility for safety and health enforcement at GOCO laboratories.

Before I address the issues the Subcommittees asked me to discuss concerning the proposed legislation, I will briefly provide you with background information concerning the history of DOE-OSHA GOCO-related activity and general information about OSHA's mission and current resources.

History of DOE\OSHA GOCO-Related Activity

In 1990, in response to DOE's request for assistance, OSHA conducted an evaluation of DOE's occupational safety and health programs for its GOCO facilities. The purpose of the evaluation was to provide DOE with a blueprint for strengthening these programs. OSHA found that although top management at DOE had made it clear that safety and health should be among the Department's highest priorities, that concern was not being reflected in the resource allocation and planning decisions of DOE and GOCO managers.

OSHA recommended that DOE take a number of actions, including the establishment of an independent oversight capability in the Office of Environment, Safety and Health (ES&H), increased safety and health staffing for both ES&H and the operations offices, and the strengthening of line responsibility for safety and health. Other recommendations included: developing more effective incentives for GOCOs to comply with safety and health regulations; improving training and technical support capabilities; requiring GOCOs to assign higher priority to safety and health programs; strengthening employee involvement; and improving the handling of employee complaints. OSHA offered to provide assistance to DOE in three major areas: improving DOE's technical information and training capabilities; strengthening DOE's independent oversight; and continued OSHA evaluation for a period of two to three years.

DOE accepted OSHA's recommendations and has implemented many of them; however, shortcomings still exist in some GOCOs' safety and health programs. In 1993, DOE announced its interest in transferring the safety and health oversight function to an external agency. Since then, OSHA and ES&H have been cooperating to exchange technical information, in order for each agency to familiarize itself with the other's policies and programs.

OSHA's Mission and Resources

OSHA is a relatively small agency with a total of 2,300 employees, approximately 1,000 of whom are inspectors. Since the late 1970's, OSHA's appropriation, adjusted for inflation, has remained virtually flat, and the number of authorized personnel has dropped 15 percent, from 2,717 in 1977 to 2,317 in 1995. Yet the number of establishments covered by OSHA has increased by 40 percent during that same time period, from 4.4 million to 6.2 million, and the number of covered workers has risen from 65 million to 93 million.

OSHA's authorizing legislation permits States to operate their own occupational safety and health programs, with Federal OSHA's approval. Currently, 23 States and two Territories operate their own plans, and receive up to 50 percent of their funding from Federal OSHA. They have a total of about 1,000 State-plan safety and health inspectors. Even if these inspectors are taken into account, the ratio of safety and health inspectors to worksites in this country is one to 3,100. At last year's rate of inspection, it would take the combined Federal and State safety and health inspection workforce 62 years to inspect every establishment.

Proposed Legislation

Now I will address H.R. 2142 and H.R. 1510. Each bill includes a section titled "Elimination of Self-Regulation". However, the language of the sections is not consistent, and OSHA is unable to completely determine the specific intent of each bill regarding implementation and enforcement of safety and health rules and regulations at DOE facilities.

Under H.R. 2142, DOE would continue to "implement" safety and health rules and regulations at GOCO laboratories, but would not be the agency that enforces such rules. H.R. 1510, on the other hand, would appear to eliminate DOE's implementation and enforcement responsibilities. H.R. 1510 does not actually mention enforcement except in the title. It simply states that DOE "shall not be the agency of implementation" of safety and health rules.

Neither bill specifies which agency would develop future safety and health regulations for DOE laboratories or whether OSHA would enforce its own safety and health regulations in the laboratories, or DOE's rules. H.R. 1510 also differs from H.R. 2142 by providing for the retention of DOE responsibility for safety and health for three defense laboratories -- Lawrence Livermore, Los Alamos, and Sandia.

It is unclear in both of the proposed bills whether OSHA would be given responsibility only for the 26 national DOE laboratories, or whether the intent is for OSHA to cover all 56 DOE GOCO sites not already being covered by OSHA. Section 5 of H.R. 1510 states that "the term departmental laboratory means a Federal laboratory, or any other laboratory or facility designated by the Secretary of Energy, operated by or on behalf of the Department of Energy." Section 2 of H.R. 2142 contains the same definition. This definition appears to allow the Secretary of Energy to designate any or all GOCO facilities as "departmental laboratories". Regardless of whether it is Congress' intent to transfer responsibility for just the 26 facilities currently classified as laboratories by DOE, or for all DOE GOCOs, there would be serious resource implications for OSHA.

Resource Implications

In any proposal which would add to OSHA's responsibilities, resource implications must be considered. One factor to be considered is the possibility that OSHA's budget will be significantly smaller in FY 1996. Legislation passed by the House in July would reduce our appropriation from $312,500,000 to about $264,000,000, an overall cut of 15.5 percent. The enforcement function would be cut by 33 percent, which would severely impact our inspection program. OSHA is in no position to take on enforcement responsibility for 26-56 complex GOCO facilities absent sufficient resources to ensure that safety and health protection is not further diluted at sites for which OSHA currently has responsibility, and that the current level of protection at GOCOs is maintained. Transferring responsibility without sufficient resources would convey the false impression to the public and to GOCO employees that their right to a safe and healthful workplace is being protected, when in fact it is not.

Another consideration is the need for additional resources to train inspectors. OSHA does not currently have the expertise to effectively enforce safety and health rules at the DOE GOCO laboratories, many of which have unique processes and hazards not found in private sector workplaces. For example, many sites have large amounts of mixed hazardous waste containing both toxic chemicals and radioactive materials. The materials are uncharacterized and some stem from the country's war years. Other facilities use high-energy research equipment, such as linear accelerators, that produces tremendous amounts of heat and use large amounts of electricity. This equipment produces very high electrical and magnetic fields. Significant resources would be needed to train OSHA inspectors to deal with these hazards.

DOE-DOL Activities

OSHA and DOE are involved in several joint activities dealing with enforcement at DOE facilities. OSHA and DOE have discussed and conceptualized two projects that would help the agencies quantify the personnel and other resource needs associated with the transfer of enforcement responsibilities. The two agencies are also participating on an advisory committee investigating external regulation of DOE's nuclear facilities.

The first project is a pilot wherein OSHA would take over enforcement at one GOCO to test the application of OSHA enforcement methods at DOE facilities. The pilot would be limited in duration and would involve a location where the OSHA Area Office has staff available to conduct enforcement activities at the site. Several issues remain to be worked out.

The second project, agreed to in a Memorandum of Understanding on June 17, is a $500,000 study (funded by DOE) that will determine the best methods and the resource requirements for transferring DOE facilities for purposes of OSHA enforcement. This study will run approximately six months once started. Critical issues which will be explored include: current DOE compliance with OSHA regulations; additional resources necessary for OSHA to assume jurisdiction; incentives toward occupational safety and health-related improvements at these facilities; an examination of lessons learned from OSHA Special Emphasis Programs and existing DOE external enforcement activities; and the development of a transition schedule for OSHA if it were to assume enforcement authority over working conditions at DOE GOCO facilities. DOE and OSHA are in the process of procuring a contractor to carry out this study.

In addition to the two projects, DOE and OSHA are participating on the Department of Energy Advisory Committee on External Regulation, which was formed by Secretary of Energy O'Leary in January. The Committee's purpose is to develop recommendations concerning whether and how DOE's nuclear facilities should be externally regulated in all areas, including worker and public safety and health, environmental protection, and nuclear safety. The Committee has been meeting since March and its co-chairs issued an interim report in August, a copy of which was provided to you by DOE. The Committee's final report is due by the close of the year.

OSHA strongly believes that we should wait until the pilot project and the study are complete and the Advisory Committee's final report is issued before developing estimates of the resources required for transfer of safety and health enforcement responsibility.

Statutory Issues

Legislation to provide for OSHA coverage of DOE-administered national laboratories must take into account a variety of jurisdictional issues which arise from the unique legal status of these facilities. Section 4(b)(1) of the Occupational Safety and Health Act (OSH Act) specifies that OSHA coverage does not apply to working conditions for which other Federal agencies have issued regulations, or to conditions for which State agencies have promulgated regulations under Section 274 of the Atomic Energy Act of 1954, as amended. Therefore, it would be necessary to exempt the departmental laboratories from Section 4(b)(1) of the OSH Act, in order for OSHA to assume coverage.

Moreover, Section 3(5) of the OSH Act excludes from the definition of a covered employer the United States and any State or political subdivision of a State. Because certain of these laboratories are operated by State university personnel, an exemption from Section 3(5) would have to be provided.

Finally, although certain of the facilities covered by the proposed legislation are located in States which administer Federally-approved State OSHA programs, enforcement of safety and health requirements in Federal facilities must, under current law, be carried out exclusively by the Federal government unless Congress explicitly authorizes State regulation. OSHA recommends that Federal jurisdiction be maintained in the DOE laboratories, provided the Congress authorizes the necessary exemption from Section 3(5) of the OSH Act (in order to ensure Federal OSHA coverage for all GOCO personnel).

Importance of Maintaining an Internal Management System

As the Subcommittees consider legislation to externalize safety and health oversight at DOE facilities, OSHA urges you to keep the following key points in mind:

An internal management system with clearly defined responsibilities and accountability is essential to worker safety and health protection. Management commitment, worker participation, and a focus on finding and fixing serious hazards and measuring results are the basic elements of the system.

While external regulation can provide incentives and sanctions that encourage the development and operation of an internal management system, it cannot replace or supplant such a system.

In any case, OSHA oversight alone would not be an adequate substitute for the level of worker protection currently afforded by the presence of on-site GOCO safety and health professionals. Thus, any legislation should ensure that GOCO facilities are required to maintain an appropriate level of safety and health staffing.

I hope that my testimony proves helpful to the Subcommittees as they consider the implications of H.R. 2142 and H.R. 1510. My staff is available to discuss these issues with you as you consider the proposed legislation.