February 4, 2004
Dear Secretary Abraham: We have serious concerns regarding the Department of Energy's (DOE) December 8, 2003, proposed regulation on worker safety and health, which was issued pursuant to authority provided by the Bob Stump National Defense Authorization Act (NDAA) for Fiscal Year 2003. Two aspects are particularly problematic. First, as recently filed comments on the rule note, the proposal would annul existing Departmental safety orders. Second, the proposal would appear to give contractors primary responsibility for writing rules governing worker health and safety at DOE facilities they operate, and decrease the overall level of worker protection afforded under current law. If these interpretations are accurate, the proposed rule would be contrary to Congress's explicit intent under the applicable federal law and represent a step backwards in protection of the many federal and private contractor employees who operate national laboratories, defense plants, and other facilities within the DOE complex. Of equal concern, this process appears to afford little if any opportunity for workers at the Department's facilities to have input into the new safety rules. This is particularly disturbing in light of the alarming history of DOE worker safety programs and indications that these problems continue. In the many years that this Committee has conducted oversight of contractor worker health and safety at DOE facilities, there has been very little evidence that DOE contractors have made the interest of their workers a foremost concern. In the past, weapons production took priority over health and safety; currently, accelerated cleanup schedules and reduced cleanup budgets are taking priority. Recently, the Government Accountability Project (GAP) issued a report on the Hanford tank farm cleanup, alleging that workers were being exposed to dangerous levels of toxic fumes emitting from the tanks. At the same time, the contractor received financial rewards for meeting an accelerated cleanup schedule. For a number of years, the Committee on Energy and Commerce, the Committee on Armed Services, and others in Congress have recognized the need for greater safety at DOE facilities operated by private contractors. In the Price-Anderson Amendments Act of 1988, Congress authorized DOE to impose civil penalties on nuclear contractors who violate safety regulations. In 1989, Congress established the Defense Nuclear Facilities Safety Board to provide independent advice and direction to improve the safety of existing and future facilities within the weapons complex. More recently, several energy bills (including the pending comprehensive energy bill, H.R. 6) have included Price-Anderson reauthorization provisions that terminate the exemption of non-profit DOE contractors' from civil penalties for nuclear safety violations. Consistent with these statutory reforms aimed at ensuring the safe operation of DOE weapons facilities, Congress directed the Department in section 3173 of the NDAA to ensure safe working conditions at these facilities -- including non-radiological health threats such as the toxic hazards described in the GAP report. Section 3173 of the NDAA directs the Department within one year to issue regulations for industrial and construction health and safety which will ensure personnel a degree of safety that is "substantially equivalent to the level of protection currently provided to such workers at such facilities." The Act also stipulated that this new provision does not diminish the application of any other worker safety requirement, and the conference committee report directed that in implementing this authority and its provisions permitting flexible implementation, "the Secretary should ensure that there is no diminution of worker health and safety" (p. 797, House Report 107-772). Like earlier statutory reforms, section 3173 evidences Congress's explicit intent to improve safety at DOE facilities, with respect to both potential impacts on nearby communities and the health of federal and contractor employees. We are concerned by comments submitted in the course of this rulemaking suggesting that DOE contractors will in effect be writing the safety rules that govern their own conduct, with only a cursory role for DOE officials in the approval process for these important standards. Section 3173 places responsibility for developing safety rules with your Department, not the contractors. Moreover, the rule does not appear to provide an opportunity for meaningful input from affected workers and other members of the public. We are also concerned by comments suggesting that the rule would annul most of the specific standards contained in DOE's existing Order 440.1A, instead of retaining its protections as a floor for establishing the new safety regulations. We call your attention to the comments contained in a January 29, 2004, letter from Chairman Conway of the Defense Nuclear Facilities Safety Board to Under Secretary Robert Card about the impact of jettisoning this Order, which it describes as containing requirements and guidance "painstakingly developed during 50 years of experience across the complex." The Board rightly fears these protections may be swept aside unless they are formally implemented in concert with the rule. All of this suggests that in developing the final rule, the Department should closely review the direction Congress has provided and retool the proposed rule to conform to Congress's express legislative intent that "the Secretary" issue new regulations that, at a minimum, do not diminish current worker safety protections. It should be equally obvious that in promulgating new rules, DOE should make every effort to improve safety conditions at its facilities. While contractors should certainly have input into this process, they should not receive any privileged status relative to workers and members of the public. Finally, we want to assure you of our continuing interest and attention to this matter in the future. We suggest that any representative of the Department who testifies before the Committee on Energy and Commerce in the coming months be prepared to respond to questions regarding worker safety at DOE facilities and the concerns raised by this letter. Sincerely, JOHN D. DINGELL TED STRICKLAND cc: The
Honorable W. J. "Billy" Tauzin, Chairman
The Honorable Joe Barton, Chairman
The Honorable Rick Boucher, Ranking Member
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