Occupational Safety and Health of Contractor Employees at Energy Department Site; Jurisdiction and Enforcement Responsibilities; Clarification

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Notice.

SUMMARY:

This notice is to advise the public of a recent clarification of the jurisdiction and enforcement responsibilities of the Occupational Safety and Health Administration (OSHA) at various Department of Energy (DOE) sites which are not subject to the Atomic Energy Act (AEA).

EFFECTIVE DATE:

This clarification becomes effective on July 5, 2000.

FOR FURTHER INFORMATION CONTACT:

Mike Turner, Office of Technical Programs and Coordination Activities, Directorate of Technical Support, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-3653, 200 Constitution Avenue, NW, Washington, DC 20210. Telephone (202) 693-2110.

SUPPLEMENTARY INFORMATION:

The U.S. Department of Labor (DOL) and the U.S. Department of Energy (DOE) have sought to clarify the regulatory authority over the occupational safety and health of contractor employees at a number of DOE government-owned or leased facilities that are not subject to the Atomic Energy Act (AEA) which provides statutory authority for DOE to regulate occupational safety and health matters relating to private sector employees at facilities subject to the AEA.

Section 4(b)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C., Sec. 653(b)(1), precludes OSHA coverage of working conditions over which other Federal agencies have exercised statutory authority to prescribe or enforce standards for occupational safety or health. A 1992 interagency Memorandum of Understanding acknowledges DOE's extensive regulation of contractor health and safety through safety orders which require contractor compliance with all OSHA standards as well as additional requirements prescribed by DOE. The agreement concludes with provisions stating that the Occupational Safety and Health Act shall not apply to Government Owned-Contractor Operated (GOCO) sites or other facilities for which DOE, pursuant to the AEA, has exercised its authority to regulate occupational safety and health.

By letter of June 18, 1999, DOE, through David Michaels, Assistant Secretary Environment, Safety and Health, provided OSHA with a list of DOE sites that were not covered by the AEA and requested OSHA's concurrence with DOE's views that the sites in question were subject to OSHA's jurisdiction. The letter states, in pertinent part:

Enclosed is the complete list of DOE facilities and activities that do not involve activities authorized under the AEA, and are therefore under OSHA jurisdiction. Our staffs have concluded that a simple letter of affirmation and acknowledgment of receipt of this list will suffice to fully clarify that OSHA and the State Plan states, as appropriate, do have a valid jurisdiction over these facilities.

OSHA responded by letter of July 13, 1999, from Charles N. Jeffress, Assistant Secretary for Occupational Safety and Health, agreeing with DOE that OSHA has jurisdiction over the working conditions of private sector employers and employees at the noted facilities. Subsequently, on March 21, 2000, DOE provided OSHA with a validated list of “. . . DOE facilities and activities currently having contractors on site for which DOE has not claimed 4(b)(1) exemption status and are under OSHA jurisdiction.” (See Exhibit 1.)

The OSHA acknowledgment letter states, in pertinent part:

OSHA accepts your conclusion that DOE is not exercising AEA authority at these sites and accordingly we generally concur that OSHA has jurisdiction over the working conditions of private sector employers and employees at these facilities. (OSHA would not, of course, have authority for working conditions addressed by other, non-DOE occupational safety or health requirements.) The extent to which OSHA's authority at non-AEA facilities may be preempted by rules of other agencies would have to be determined on a case-by-case basis, in consultation with the concerned agency, applying the principles of 4(b)(1) law. Although not explicitly stated in your letter, it is also our understanding in making this determination that DOE is not exercising safety and health enforcement authority at these sites under any other statute in a manner that would preempt OSHA's jurisdiction under section 4(b)(1) . . . (As noted in your letter, OSHA has jurisdiction for federal employees at these sites, in accordance with Executive Order 12296 and 29 CFR 1960.)

Accordingly, OSHA is giving public notice that private sector employers and employees at the DOE facilities listed in Exhibit 1 are subject to all standards, rules and requirements issued under the Occupational Safety and Health Act.

A number of the non-AEA sites listed in Exhibit 1 are located in States which operate OSHA-approved State Plans. Until a final determination is made, such sites will be deemed “issues not covered by the State plan” and thus subject to Federal enforcement jurisdiction. OSHA will work with its State partners in determining whether State plans or Federal jurisdiction is appropriate for individual facilities and will provide further formal notification, as appropriate. In the interim, Federal OSHA will exercise enforcement jurisdiction over those sites listed in Exhibit 1, which are located in State Plan States, until it is determined whether the State is able to exercise jurisdiction.

Exhibit 1

Department of Energy (DOE) Non-Atomic Energy Act (AEA) Sites and Facilities

Western Area Power Administration Headquarters, P.O. Box 3402, Golden, CO 80401-0098, Covers all or part of the following States: AZ, CA, CO, IA, KS, MN, MT, NE, ND, NM, NV, SD, TX, UT, WY

Southwestern Power Administration, Headquarters, P.O. Box 1619, Tulsa, OK 74101, Covers all or part of the following States: AR, KS, LA, MO, OK, TX

Southeastern Power Administration, Headquarters, 2 South Public Square, Elberton, GA 30635, Covers all or part of the following States: AL, FL, GA, IL, KY, MS, NC, SC, VA, WV

Bonneville Power Administration, 905 NE 11th Ave., P.O. Box 3621, Portland, OR 97208-3621, Covers all or part of the following States: CA, ID, MT, NV, OR, UT, WA, WY

National Energy Technology Laboratory (NETL), 3610 Collins Ferry Road, P.O. Box 880, Morgantown, WV 26507-0880

National Energy Technology Laboratory (NETL), 626 Cochrans Mill Road, Pittsburgh, PA 15236-0940

Strategic Petroleum Reserves (SPR), Project Office, 900 Commerce Road East, New Orleans, LA 70123

National Petroleum Technology Office, Williams Center Tower 1, 1 West Third St., Suite 1400, Tulsa, OK 74103

Albany Research Center, 1450 Queen Ave., SW, Albany, OR 97321-2198

Naval Petroleum & Oil Shale Reserves in CO, UT, & WY., 907 N. Poplar St., Suite 150, Casper, WY 82601

Naval Petroleum Reserves in California, 28590 Highway 119, P.O. Box 11, Tupman, CA 93276