Comparison of Worker Safety Standards under Federal OSHA Rules

vs the Department of Energy’s (DOE)Rule (10 CFR 851)

The FY 2003 Defense Authorization Act (Section 3173) required DOE to issue enforceable worker health and safety regulations, and authorized civil penalties for violations. DOE’s regulations are more protective than Federal OSHA in many areas. OSHA enforces through physical inspections, whereas DOE largely relies on mandatory contractor self-reporting or employee complaints.

  • Written Worker Safety Health Program – OSHA does not require a written WS&H program. By contrast, DOE requires contractors to develop a plan to meet the requirements of the DOE’s worker health and safety rule. This allows each contractor to tailor a program that best meets unique hazards that are found at each particular site.
  • Worker Involvement--10 CFR 851 requires management to develop a mechanism to involve workers in the development of worker safety and health program goals, objectives and performance measures and in the identification and control or workplace hazards. OSHA only encourages management to have worker involvement.
  • Stop work procedures --10 CFR 851 requires management to establish procedures to allow workers to “stop work” or decline to perform tasks because of a worker’s reasonable belief that the task poses an imminent risk or serious physical harm. By contrast, OSHA can only ask management to stop tasks that pose serious physical harm, but if they do not comply, OSHA must seek relief from federal courts to actually stop work.
  • Chronic Beryllium Disease Prevention Program—DOE’s beryllium rule is enforceable under 10 CFR 851, and contractors who violate it are subject to civil penalties. OSHA’s beryllium standard sets an exposure level of 2 ug/M3 that was established in 1970. DOE’s exposure threshold is 0.2 ug/M3, which is 10-fold more protective than OSHA. It has been extensively documented that OSHA standard does not prevent chronic beryllium disease.
  • Consensus Standards--10 CFR 851 requires contractors to follow a number of consensus standards (i.e., NFPA, National Electric Code, ANSI Laser standard, etc) that are in many cases 20 years newer than those required by OSHA. OSHA has struggled to update its requirements for consensus standards and has not found an expedited means to do this.
  • Hazards Unique to the DOE Facilities--DOE has identified 10 “Functional Areas” (i.e., Fire Protection, Explosives, Firearms, Electrical Safety, Industrial Hygiene, Occupational Medicine, etc.) of special interest to nuclear weapons facilities. Contractors must comply with a number of focused requirements. While OSHA addresses some of the elements contained in these functional areas, others are unique to DOE (e.g. explosives).
  • DOE Uses Updated Chemical Exposure Limits-- The OSHA Permissible Exposure Limits (PELs) are based on the 1968 ACGIH Threshold Limit Values (TLVs) for chemical exposures. By contrast, DOE’s rules at 10 CFR 851 requires the use of the 2005 ACGIH TLVs which have been updated and revised over the past 37 years to better control exposure to chemicals. While OSHA could use their General Duty Clause to enforce updated chemical exposure standards, this is not routine.
  • Some of DOE’s maximum penalties are higher than OSHA’s--DOE may issue penalties up to $70,000 for each “serious” violation.[1] If the violation is a continuing one, each day the violation continues shall constitute a separate violation for the purpose of computing the civil penalty. OSHA may issue penalties up to only $7,000 for each serious violation. For “other-than-serious” violations, DOE may issue penalties up to $35,000 per violation, as compared to OSHA, who may issue penalties only up to $7,000 per violation. If applied, this may increase DOE’s ability to deter non-compliance.

[1] A “serious” violation exists when there is a potential that death or serious harm could result from an existing condition or an adopted practice.