Safety in the Underground Construction and Operation of the Exploratory Studies Facility at Yucca Mountain (1995)

Patrick Tyson

Patrick Tyson gave the keynote address to open the discussion session, held on the second day of the conference. His stated goal was to respond to some of the issues and questions raised during the conference and to give participants some sense of Occupational Safety and Health Administration's current and future operations.

The Occupational Safety and Health Administration (OSHA) is a small agency with a big mission. Its limited budget makes it difficult for OSHA to protect the safety and health of American workers in the work place. However, OSHA does have solid enforcement authority, including the ability to issue first-instance sanctions and to levy substantial fines.

Congress and Department of Energy (DOE) Secretary Hazel O'Leary have indicated a desire to turn safety and health jurisdiction on DOE projects over to OSHA. Federal or Nevada OSHA inspectors will evaluate compliance of the Exploratory Studies Facility (ESF) project with OSHA regulations. Particular areas that are likely to receive OSHA attention include record keeping, especially regarding training and material safety; lock-out/tag-out requirements; and electrical standards.

DOE should establish a sound safety and health program that emphasizes employee involvement. Making a good-faith effort to protect workers' safety and health and demonstrating a willingness to work with OSHA to address safety concerns can ensure a productive relationship between DOE and OSHA concerning safety at the Yucca Mountain Project.

OSHA is a small entity among federal agencies. It claims to have 1200 inspectors for federal enforcement purposes, but the actual number is probably closer to 900. In addition, there are 23 states that also enforce occupational safety and health, with OSHA oversight, adding another 1,000 to 1,200 inspectors to the field.

With such numbers, it would take OSHA perhaps 40 to 50 years to inspect every work place under its jurisdiction. In fact, OSHA tends to focus on certain areas and certain companies. There are many companies and many work sites that will never see an OSHA inspector.

By contrast, the Environmental Protection Agency (EPA) is huge. OSHA has a lot of authority but little money and few people to enforce its standards. EPA, on the other hand, has limited authority with a large budget; this year's EPA budget is larger than the total of all OSHA budgets over the years of its existence.

To protect the safety and health of every American worker in the work place, OSHA needs a presence larger than its budget alone would allow. Recognizing that OSHA has an impossibly large area of jurisdiction, Congress wrote the law to allow first-instance sanctions; that is, the first time that OSHA determines that a violation exists, a penalty is assessed. With the threat of immediate penalty upon discovery or determination of a violation, Congress hoped to ensure work-place compliance with OSHA regulations.

Before 1990, the maximum penalty for a willful violation was $10,000. In 1990, legislation was introduced in Congress that would raise it sevenfold; the maximum was raised to $70,000. Congress passed it, and President Bush signed it—not to encourage better compliance, but to bring in more money for the federal government. The then Assistant Secretary Jerry Scannell decided that raising all fines by a factor of seven was not wise, but that some increase was a good idea. Since $70,000 was a maximum and because OSHA has wide latitude in the imposition of penalties, he led OSHA in raising fines to two or three times what they had been. However, the Clinton administration can be expected to double the penalties again, nearly realizing the sevenfold increase originally intended by Congress.

In addition to higher penalties for violations, OSHA is known to use what is called the egregious multiplier. Ordinarily, if OSHA finds multiple, identical instances of a violation at a work site, the multiple instances will be classified as a single violation. However, if OSHA chooses to apply the egregious multiplier, each instance will be

counted as a separate violation. This multiplier was first used in a case in which a company had failed to record properly the names of 130 injured workers in their OSHA log; OSHA assessed a penalty for each missing name.

The penalties discussed above are civil penalties; OSHA also has a criminal penalty for a willful violation that results in the death of an employee. That penalty is 6 months in jail or a $10,000 fine, which if assessed, would probably be increased to $250,000 by the applicability of another federal law.

However, criminal prosecution has rarely been used by the federal OSHA. They have referred fewer than 100 cases to the Justice Department for prosecution; of these, perhaps 2 or 3 have been successfully concluded. This relative lack of action on the part of the Justice Department and the U.S. Attorney's Office may be related to the small size of OSHA's criminal penalties. However, those penalties may undergo changes.

The OSHA Reform Bill includes a provision that would increase the criminal penalty from 6 months in jail for a willful violation resulting in the death of an employee to 10 years in jail. The Bill would also increase the monetary penalty to $500,000 and require that, if the monetary penalty is applied against an individual, that individual will be held personally liable; the amount cannot be paid from corporate funds. Also in the OSHA Reform Bill is a provision to make a willful violation resulting in the serious injury (as defined by the bill) of an employee a criminal offense, punishable by 5 years in jail.

As noted earlier, the federal OSHA has not often pursued criminal enforcement, but many states have. For example, several criminal actions have been brought by the state of California, where a particular department within that state's attorney general's office investigates all work-related deaths as potential criminal violations. Illinois also recently convicted two corporate officers of murder as the result of the death of an employee at their work site.

These states are not applying their OSHA laws but rather are trying these incidents as common-law crimes, such as murder, manslaughter, or reckless endangerment. An example of this approach can be found in the case of the fire in an Imperial Foods plant in Hamlet, North Carolina, where 25 people died as a result of locked exit doors. After plea bargaining, the president of that company was sentenced to jail for 20 years but the potential penalty was even higher. That conviction was rendered under North Carolina's murder law rather than under its OSHA law.

Typically an OSHA inspection follows a complaint filed by an employee or else results from the OSHA targeting system or a special-emphasis program. In every OSHA

inspection there is a mental evaluation; the inspector tries to determine whether the object of the investigation is a good guy or a bad guy. The inspector makes that assessment early in the process, and that determination has a great impact on the direction of the rest of the inspection. OSHA inspectors will not be hard on a good guy, but they will charge a bad guy with any infraction they can find.

If an employer does not have a safety program, he or she starts out being a bad guy, because that indicates a lack of concern for safety. The better the program the employer has in place, the better the inspectors' perception will be of that employer.

If an employer is not keeping injury records properly, then he or she is a bad guy. Without knowing where the injuries are taking place, a company cannot creme a safety program that addresses those problems effectively.

Inspectors will look at specific programs that are required by law, such as the hazard communication program and the management of lock-out/tag-out and confined space, to assess the organization's approach to the issue of safety.

In addition, the company should assign the highest-ranking official it possibly can to interface with the OSHA inspectors, because this demonstrates that the company cares about the safety and health of its employees. That kind of attitude will affect the evaluation of the OSHA inspectors.

A tunneling work site presents special problems. There will be several contractors on site, but typically OSHA will go in or be called in to inspect only one of these. Looking at one contractor's logs will not tell the OSHA inspectors what is happening elsewhere at the site.

OSHA is concerned about multicontract work sites, because there have been cases in which companies used contractors or subcontractors to perform hazardous work, often at a lower cost than a company's own employees would require. If accidents occurred in such a situation, they did not appear on the lead company's OSHA records. To respond to such multicontract work sites, OSHA has a multiemployer work-site policy that holds all contractors on a site responsible for hazardous conditions, regardless of who causes or fails to address the hazard.

This policy clearly encourages each member of an underground contractor team to do as much as possible to ensure the safety of its own employees and the employees of other team members. However, every action that affects or impinges upon another company's safety and health program may increase the acting organization's liability should an employee of the other company be injured, which raises the issue of third-party liability. One way to avoid this situation is to select contractors and subcontractors only after rigorous evaluation of each organization's safety record.

In the forefront of the minds of many DOE contractors is the jurisdictional change that is likely to occur in the near future. The OSHA Act of 1970 gives OSHA jurisdiction in all cases except those in which another federal agency has asserted responsibility for the working conditions of employees. For many years DOE, like the Department of Defense, the Department of Transportation, and several other federal agencies, has claimed jurisdiction over the safety of DOE contractors, based on the contract between DOE and each of its contractors. Each contract requires the contractor to comply with DOE safety and health regulations. When DOE claims authority for safety, OSHA will not challenge it, regardless of how effective the department' s authority is or how effective the standards and regulations are.

However, the current Secretary of Energy, Hazel O'Leary, has indicated a desire to give jurisdiction back to OSHA. Additionally, the OSHA Reform Bill singles out DOE as the sole agency not to be allowed jurisdiction over its own safety program. This combination of congressional sentiment and Secretary O'Leary's stated desire all but guarantees that jurisdiction over DOE safety will be returned to OSHA.

The new leader of OSHA, Joe Dear, was only recently confirmed, on November 8, 1993, but he has been working as a consultant to OSHA since April 1993. He can be expected to move quickly to address a number of issues. One likely outcome is an increase in the OSHA enforcement effort with higher penalties for noncompliance, probably double what they are now. Mr. Dear also plans to find a better way to target inspections and issue standards. He has identified a number of health and safety issues he wants to address.

OSHA under the Clinton administration will not be a throwback to OSHA under the Carter administration. At that time, all employers were seen as bad guys, and OSHA sought to find and punish all their offenses. The current OSHA attitude is that there are some employers who willfully fall to comply with standards, and OSHA will try to find them, but the agency intends to work cooperatively with those employers who are making a good-faith effort to secure the health and safety of their employees.

Record keeping is probably the area of compliance that will receive the most scrutiny by OSHA on the ESF at Yucca Mountain. The application of the egregious multiplier described earlier illustrates how seriously OSHA takes the issue of record keeping. OSHA inspects records at every site and recognizes that DOE record-keeping practices are different from those of OSHA. OSHA record keeping is more complex than most people think it is, and it is easy to do it incorrectly.

DOE must pay attention to OSHA' s mandatory written programs. First, DOE must ensure that the ESF hazard communication program must meet all OSHA requirements. Employees must be thoroughly trained and all training must be documented, because frequently employees do not remember that they have been trained in hazard communication and may tell OSHA inspectors that they have not been trained.

Second, DOE must ensure that all material safety data sheets are available. Each team member should give copies of the appropriate material safety data sheets to every contractor whose employees are being exposed to materials that team member brings into the operation and should obtain copies of the sheets for materials introduced by other contractors to which its employees will be exposed.

Lock-out/tag-out is a relatively new and complex standard that will probably receive emphasis by OSHA. All team members should ensure that training for that standard and the appropriate audits are well documented. They should also maintain written procedures for the lock-out of every machine being used.

The ESF team should also comply with the electrical standard. This standard receives different emphasis from different compliance officers, so thorough compliance is the best approach.

The ESF should not only comply with specific standards, but should also establish programs to meet employee health and safety objectives and to ensure continuing compliance with OSHA regulations. These programs should emphasize employee involvement.

Determining the effectiveness of such programs requires more judgment of the inspector than simply evaluating compliance. Nevertheless, such programs will be required. Title I of the OSHA Reform Bill requires every work place in the nation to have a safety and health program that includes certain minimum elements. Title II requires each organization to establish an employee/management committee or labor/management

committee that includes equal representation of employees and management.¹ This committee will be responsible for operating the safety and health program: conducting accident investigations, performing regular inspections, and recommending corrective action to the employer. The employer will retain responsibility for ensuring that the program works.

Work-place safety and health at the ESF at Yucca Mountain will fall under the jurisdiction of the federal or Nevada OSHA. Violations of OSHA regulations can draw civil and criminal penalties; additionally, the state may charge an employer with a common-law criminal violation in the case of injury to or death of an employee.

DOE can take steps to ensure work-place safety and to build an effective working relationship with OSHA. Keeping adequate safety records, particularly of employee training and material safety, establishing a hazard communication program that meets OSHA standards, meeting lock-out/tag-out requirements, and complying with electrical standards are all important actions DOE should take to ensure a safe work place that satisfies OSHA requirements. Perhaps even more importantly, DOE should establish programs that actively involve employees in safety and health in the ESF work place. By making an honest effort to establish a safe work place at the ESF, DOE can facilitate a productive and cooperative relationship with OSHA.

A participant asked whether OSHA will try to field an expert in tunnel construction as an inspector at the ESF at Yucca Mountain, to ensure an appropriate evaluation. Mr. Tyson responded that both political parties' versions of the OSHA Reform Bill include provisions for construction safety, and the Republican version would require inspectors to be experienced in the industries they are inspecting. More likely than the passage of

the Reform Bill, however, is that OSHA will borrow the expertise from other agencies when it is required, perhaps in the form of detailed personnel.

Answering another query, Mr. Tyson observed that it is a stated goal of this administration to prune OSHA standards and focus enforcement efforts on real hazards, but his evaluation is that the focus will continue to be on compliance, and if the inspectors determine that an employer is deliberately failing to comply, then they will cite that employer on anything they can.

The fate of the Construction Safety, Health, Education and Improvement Bill is unclear, he said. It has been attached to the OSHA Reform Bill but does not fit well with it. The speaker explained that the construction bill was written by members of the construction trades and circulated on Capitol Hill long before the OSHA Reform Bill, which was written by the AFL-CIO. He expects that the differences between those bills will be worked out in committee, if both bills have strong congressional support.

A final question concerned the conflict between the OSHA Reform Bill and a law that formed the basis of National Labor Relations Board (NLRB) actions against two companies, DuPont and Electromation, that had set up safety committees including employee representatives. Late in 1993, NLRB issued decisions against these two companies saying that such employee committees are illegal.

The law applied in these cases was written in the 1930s to prevent companies from establishing sham, company-controlled unions with the goal of stopping their employees from organizing their own unions. The law states that a labor organization cannot receive any support from an employer and defines a labor organization as a group of employees that deals with the employer over any working conditions. A safety committee is a group of employees (even when it also includes management) that deals with the employer over working conditions. Since the companies in question were supporting the committees by paying employees for time spent on committee meetings and by providing space for meetings to be held, Tyson said the groups were clearly illegal according to the 1930s law.

When the OSHA Reform Bill is passed, it will include a statement that the committees mandated by the Reform Act shall not be considered labor organizations for the purposes of the law already on the books and used by NLRB in its findings against Electromation and DuPont. In the meantime, said Tyson, employers are advised to go ahead and establish such committees if they wish and allow them to function until someone files a complaint with NLRB, at which time they should disband the committees and post notices stating their intent not to establish any other such committees. If there is a union involved, an alternative is to negotiate the establishment of such committees as a part of the contract.