Page 1 GAO-13-497R Worker Safety and Health 

441 G St. N.W. 

Washington, DC 20548 

May 29, 2013 

Congressional Committees 

Subject: Worker Safety and Health at Department of Energy Sites

Work carried out at Department of Energy (DOE) sites across the country involves, among other 

things, (1) research on dangerous nuclear materials, such as plutonium, and (2) the handling 

and disposal of radioactive and hazardous waste that, if not handled safely, could cause nuclear 

accidents or expose the public and the environment to heavy doses of radiation. Workers at 

DOE sites also perform a wide range of other activities not involving nuclear materials, including 

construction, routine maintenance, and operating equipment, all of which run the risk of 

accidents. The consequences of these accidents could be less severe than those involving 

nuclear materials but could nevertheless result in injuries, long-term illnesses, or even death. 

Under the Occupational Safety and Health (OSH) Act of 1970, as amended, the Department of 

Labor’s (Labor) Occupational Safety and Health Administration (OSHA) issues and enforces 

occupational health and safety regulations. OSHA, or a state with approval from OSHA, 

regulates the occupational health and safety of private sector employees unless another federal 

agency has and exercises its statutory authority to regulate. According to the DOE, the Atomic 

Energy Act (AEA) of 1954, as amended, authorizes DOE to regulate the occupational safety 

and health of private sector employees at facilities subject to the act. DOE has exercised this 

authority by issuing various departmental orders, directives, and regulations. In 2006, DOE 

promulgated regulations—10 C.F.R. Part 851 (Part 851)—which currently govern contractors’ 

worker safety and health at certain DOE sites. DOE relies on contractors and subcontractors to 

perform day-to-day operations at most of its nuclear and nonnuclear facilities located at 

approximately 40 sites across the country. In recent years, DOE contractors as well as 

members of Congress have raised the possibility of revising Part 851 or making a federal 

agency other than DOE responsible for regulating worker health and safety at the National 

Nuclear Security Administration (NNSA), a separately organized agency within DOE responsible 

for the management and security of the nation’s nuclear weapons programs. 

This report formally transmits the briefing slides presented to committee staff on March 12 and 

14, 2013, in response to Senate Report No. 112-173, accompanying S. 3254, a version of the 

National Defense Authorization Act for Fiscal Year 2013, that directed GAO to review Part 851. 

The objectives of this report are to identify (1) key similarities and differences between Part 851, 

OSHA regulations, and the OSH Act; and (2) views of DOE, Labor, and OSHA officials; union 

representatives; and contractor representatives on whether Part 851 is equally, less, or more 

protective than OSHA regulations and the OSH Act. 

 
Page 2 GAO-13-497R Worker Safety and Health 

To identify key similarities and differences, we reviewed Part 851, OSHA regulations, the OSH 

Act, supplemental information for the Part 851 final rule, and a crosswalk document prepared by 

officials in DOE’s Office of Health, Safety, and Security. We also discussed similarities and 

differences with officials from DOE’s Office of Health, Safety, and Security; Office of General 

Counsel; and NNSA; and Labor’s OSHA and Office of the Solicitor. To identify views comparing 

the protectiveness of Part 851 regulations to OSHA regulations and the OSH Act, we 

interviewed DOE, Labor, and OSHA officials and reviewed documents, including the National 

Laboratory Directors Council’s (NLDC) analyses of Part 851. We also interviewed 

representatives from the United Steelworkers and AFL-CIO, which we selected based on our 

review of relevant literature identifying unions active in the area of Part 851 regulations. In 

addition, we interviewed contractor representatives at Sandia National Laboratory (SNL). We 

selected SNL because, among other reasons, NLDC’s representative for Part 851 issues and 

contractor staff who have surveyed contractors at other DOE laboratories about Part 851 work 

at SNL. Because we selected and interviewed nonprobability samples of union and contractor 

representatives, their views are not generalizeable to other contractors or union representatives. 

We conducted this review from November 2012 to May 2013 in accordance with generally 

accepted government auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings 

and conclusions based on our audit objectives. We believe that the evidence obtained provides 

a reasonable basis for our findings and conclusions based on our audit objectives. 

In summary, we found the following: 

 There are several key similarities and differences between Part 851, OSHA regulations, 

and the OSH Act. Several key similarities are that Part 851 incorporates by reference 

almost all OSHA standards; authorizes workers to file complaints about unsafe working 

conditions or hazards in the workplace; and requires employers to record occupational 

fatalities, injuries, and illnesses and retain the records. Several key differences are that 

Part 851 incorporates additional industry standards and authorizes DOE to accept 

hazard controls—in certain nonoperational facilities—that are not otherwise fully 

compliant with applicable DOE regulations for worker health and safety. 

 The DOE, Labor, and OSHA officials, and union and contractor representatives we 

interviewed cited various Part 851 regulations as either equally protective or more 

protective than OSHA regulations and the OSH Act; only one Part 851 standard was 

cited as possibly less protective and only by contractor representatives. DOE officials 

and union and contractor representatives generally viewed Part 851 as at least as 

protective as OSHA regulations and the OSH Act because it incorporates essentially all 

OSHA standards and has a general duty clause—which requires employers to protect 

the health and safety of workers even when no specific standards exist—as does the 

OSH Act. Contractor representatives viewed one Part 851 standard—an industry 

standard for respiratory protection—as being less protective than OSHA regulations. 

However, DOE officials stated that Part 851 also incorporates by reference OSHA’s 

respiratory protection standard and is therefore no less protective. DOE and OSHA 

officials as well as union and contractor representatives viewed some Part 851 

regulations as probably more protective than OSHA regulations. For example, DOE 

officials and union representatives cited DOE’s beryllium standard as being more 

protective than the OSHA’s standard, in part, because DOE’s standard has a lower 

airborne beryllium level that triggers monitoring and protective actions, and DOE officials 
Page 3 GAO-13-497R Worker Safety and Health 

and contractor representatives cited Part 851’s explosive standards as being more 

applicable to hazards found at DOE sites. 

We provided a draft of this report to DOE and OSHA for their review and comment. We received 

technical comments from both agencies, which we addressed as appropriate. 

We are not making any recommendations in this report. See the enclosure for the briefing slides 

that provide additional details on the results of our review. 

- - - - - 

We are sending copies of this report to the Secretary of Energy, Secretary of Labor, Assistant 

Secretary of Labor for Occupational Safety and Health, appropriate congressional committees, 

and other interested parties. This report also is available at no charge on the GAO website at 

http://www.gao.gov. 

If you or your staff have any questions, please contact me at (202) 512-3841 or 

trimbled@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs 

may be found on the last page of this report. Key contributors to this report were Dan Feehan, 

Assistant Director; John Delicath; Terry Hanford; Heather Salinas; Jeanette Soares; and Kiki 

Theodoropoulos. 

David C. Trimble 

Director, Natural Resources and Environment 

Enclosure 

 
Page 4 GAO-13-497R Worker Safety and Health 

List of Committees 

The Honorable Carl Levin 

Chairman 

The Honorable James M. Inhofe 

Ranking Member 

Committee on Armed Services 

United States Senate 

The Honorable Dianne Feinstein 

Chairman 

The Honorable Lamar Alexander 

Ranking Member 

Subcommittee on Energy and Water Development 

Committee on Appropriations 

United States Senate 

The Honorable Howard P. “Buck” McKeon 

Chairman 

The Honorable Adam Smith 

Ranking Member 

Committee on Armed Services 

House of Representatives 

The Honorable Rodney P. Frelinghuysen 

Chairman 

The Honorable Marcy Kaptur 

Ranking Member 

Subcommittee on Energy and Water Development, and Related Agencies 

Committee on Appropriations 

House of Representatives 
Page 5 GAO-13-497R Worker Safety and Health 

Enclosure 

Briefing on Part 851, OSHA Regulations, and 

the OSH Act

For Congressional Committees

March 2013

For more information, contact David C. Trimble, Director, at (202) 512-3841 or trimbled@gao.gov Page 1
Enclosure 

Page 6 GAO-13-497R Worker Safety and Health 

Contents

• Introduction 3

• Objectives 6

• Scope and Methodology 7

• Background 10

• Objective 1: Key Similarities and Differences between

Part 851 and OSHA Regulations and the OSH Act 11

• Objective 2: Views on Whether Part 851 Is Equally, 

Less, or More Protective 17

• Appendix I: Chronology Illustrating External

Regulation Proposals 24

Page 2
Enclosure 

Page 7 GAO-13-497R Worker Safety and Health 

Introduction

• According to the Department of Energy (DOE), the Atomic Energy Act 

(AEA) of 1954, as amended, authorizes DOE to regulate occupational 

safety and health of private sector employees at facilities subject to the 

act. DOE has exercised this authority by issuing various departmental 

orders, other directives, and regulations.

• Under the Occupational Safety and Health (OSH) Act of 1970, as 

amended, the Occupational Safety and Health Administration (OSHA) or 

a state that operates under a plan approved by OSHA, regulates the 

occupational health and safety of private sector employees unless a 

federal agency has and exercises statutory authority to regulate those 

employees. DOE regulates at its sites where it exercises its statutory 

authority under AEA.

Page 3
Enclosure 

Page 8 GAO-13-497R Worker Safety and Health 

Introduction

• Since the 1990s, various parties have proposed that OSHA, rather than DOE, regulate 

worker health and safety at DOE sites. In general, the proposals were focused initially 

on all DOE regulated sites, then focused on DOE science laboratories, and later 

refocused on the National Nuclear Security Administration (NNSA), a separately 

organized agency within DOE. (See chronology in app. I.)

• In 2002, the AEA was amended to require DOE to promulgate regulations for industrial 

and construction health and safety at certain sites. In 2006, DOE promulgated such 

regulations, specifically 10 C.F.R. Part 851, “Worker Safety and Health Program,” which 

currently governs the conduct of contractor activities at certain DOE sites.

• According to DOE officials, Part 851 programs are one aspect of DOE’s Integrated 

Safety Management System (ISMS), which is designed to ensure that DOE and 

contractors systematically integrate safety into management and work practices. Under 

the ISMS, a contractor must define the work to be performed, analyze the potential 

hazards associated with the work, and identify a set of standards and controls that are 

sufficient to ensure safety and health if implemented properly.

Page 4
Enclosure 

Page 9 GAO-13-497R Worker Safety and Health 

Introduction

• In recent years, DOE contractors and Congress raised the 

possibility of changes, such as revising Part 851 or changing the 

agency responsible for regulating worker health and safety at 

NNSA sites. 

• For example, in 2011, the National Laboratory Director Council’s 

(NLDC)—an organization formed by the laboratory directors from 

each of the 17 DOE national laboratories—prepared a paper on 

burdensome policies and practices at DOE sites. The paper 

stated that Part 851—which goes beyond OSHA standards—

imposes additional costs without having been shown to increase 

worker protection. It recommended revising Part 851 to 

implement only OSHA standards.

Page 5
Enclosure 

Page 10 GAO-13-497R Worker Safety and Health 

Objectives

Senate Report No. 112-173 accompanying S. 3254, a version of 

the National Defense Authorization Act for Fiscal Year 2013, 

requested GAO to review Part 851. In response, our 

objectives were to identify:

1. key similarities and differences between Part 851, OSHA 

regulations, and the OSH Act; and 

2. views of DOE, Labor, and OSHA officials; union 

representatives; and contractor representatives on 

whether the Part 851 regulation is equally, less, or more 

protective than OSHA regulations and the OSH Act.

Page 6
Enclosure 

Page 11 GAO-13-497R Worker Safety and Health 

Scope and Methodology

• To identify key similarities and differences, we reviewed Part 851, OSHA 

regulations, the OSH Act, supplemental information for the Part 851 final rule, 

and a crosswalk document prepared by officials in DOE’s Office of Health, 

Safety, and Security. 

• For both Objectives 1 and 2, we conducted interviews with 

• officials from DOE’s Office of Health, Safety, and Security; Office of General 

Counsel; and NNSA;

• officials from Department of Labor’s OSHA and Office of the Solicitor;

• contractor representatives for the NLDC and Sandia National Laboratory; 

and

• representatives from United Steelworkers and AFL-CIO.

Page 7
Enclosure 

Page 12 GAO-13-497R Worker Safety and Health 

Scope and Methodology

• To identify views comparing the protectiveness of Part 851 

regulations to OSHA regulations and the OSH Act, we interviewed 

DOE, Labor, and OSHA officials and reviewed documents including 

NLDC’s analyses of Part 851. 

• We selected representatives from two union organizations to 

interview, based on our review of relevant literature that indicated 

these were active unions in the area of Part 851 regulations. 

• We selected contractor representatives at Sandia National 

Laboratory to interview, based on several criteria, including that 

Sandia National Laboratory is the location of the NLDC 

representative for Part 851 issues and contractor staff who had 

surveyed contractors at other DOE laboratories concerning Part 851 

issues. Both the union and contractor representatives are 

nongeneralizable samples.

Page 8
Enclosure 

Page 13 GAO-13-497R Worker Safety and Health 

Scope and Methodology

• We obtained technical comments from DOE and OSHA and 

incorporated those comments as appropriate.

• We conducted this performance audit from November 2012 

to mid-March 2013 in accordance with generally accepted 

government auditing standards. Those standards require 

that we plan and perform the audit to obtain sufficient 

appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable 

basis for our findings and conclusions based on our audit 

objectives.

Page 9
Enclosure 

Page 14 GAO-13-497R Worker Safety and Health 

Background

• OSHA issues and enforces occupational safety and health standards for 

workplaces that are not regulated by other federal agencies. Such 

standards require conditions, or the adoption or use of practices, means, 

methods, operations, or processes, reasonably necessary or appropriate to 

provide safe or healthful employment and places of employment.

• The OSH Act directed the Secretary of Labor to adopt any national 

consensus standards or established federal standards as safety and health 

standards within 2 years of the date the OSH Act went into effect in 1971. 

• In 2012, we reported that the vast majority of OSHA standards have not 

changed since first adopted in the 1970s and that it takes an average of 

more than 7 years for OSHA to develop and issue new safety standards.1

Page 10

1GAO, Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting, GAO-12-330 

(Washington, D.C.: Apr. 2, 2012).
Enclosure 

Page 15 GAO-13-497R Worker Safety and Health 

Objective 1: Key Similarities between Part 

851and OSHA Regulations and the OSH Act

• Part 851 is similar to the OSH Act and OSHA regulations by

• incorporating by reference almost all OSHA standards; 

• requiring employers to protect the health and safety of workers, 

even when no specific standard exists, a requirement known as 

the general duty clause; 

• authorizing workers to file complaints about unsafe working 

conditions or hazards in the workplace; and 

• establishing processes to inspect workplaces and investigate 

potential violations.

Page 11
Enclosure 

Page 16 GAO-13-497R Worker Safety and Health 

Objective 1: Key Similarities between Part 

851and OSHA Regulations and the OSH Act 

• Part 851 is similar to the OSH Act and OSHA regulations by 

(continued)

• establishing enforcement processes after investigating 

potential violations; and 

• requiring employers to record occupational fatalities, 

injuries, and illnesses and retain the records.

Page 12
Enclosure 

Page 17 GAO-13-497R Worker Safety and Health 

Objective 1: Key Differences between Part 

851and OSHA Regulations and the OSH Act 

• Part 851 differs from OSHA regulations and the OSH Act by

• authorizing DOE to issue compliance orders—which, 

among other things, can mandate a work stoppage or 

action to remedy a hazard. According to OSHA officials, 

the agency would have to obtain a court order to force an 

employer to stop work because of an imminent danger, 

although employers often will stop work if OSHA notifies 

them of an imminent danger. 

• authorizing DOE to assess different types and amounts 

of penalties. 

Page 13
Enclosure 

Page 18 GAO-13-497R Worker Safety and Health 

Objective 1: Key Differences between Part 

851and OSHA Regulations 

• Part 851 differs from OSHA regulations by (continued)

• including standards for certain hazards, such as 

beryllium, that contain different requirements than 

OSHA standards; 

• including standards that cover hazards not covered 

by OSHA standards, such as firearms safety; and

• incorporating a more current version of industry 

standards and guidelines (e.g., voluntary industry 

consensus standards).

Page 14
Enclosure 

Page 19 GAO-13-497R Worker Safety and Health 

Objective 1: Key Differences between Part 

851and OSHA Regulations 

• Part 851 differs from OSHA regulations by (continued)

• requiring contractors to prepare a written worker safety and 

health program that addresses all Part 851 requirements and 

applicable functional areas, whereas OSHA regulations 

generally do not require such programs. 

• requiring contractors to establish procedures to permit 

workers to decline work in certain hazardous conditions, 

whereas OSHA regulations do not require employers to 

establish such procedures, but the regulations also permit 

workers to decline work in certain circumstances.

• requiring contractors to investigate certain accidents, injuries, 

and illnesses and analyze related data for trends and lessons 

learned, whereas OSHA regulations do not impose such 

requirements on employers. 

Page 15
Enclosure 

Page 20 GAO-13-497R Worker Safety and Health 

Objective 1: Key Differences between Part 

851and OSHA Regulations 

• Part 851 differs from OSHA regulations by (continued)

• requiring contractors to involve workers in (1) developing worker safety and 

health program goals, objectives and performance measures and (2) 

identifying and controlling workplace hazards. OSHA regulations do not 

have a generic requirement for such worker participation; however, specific 

standards may, and non-mandatory guidance identifies worker involvement 

in such activities as a best practice; 

• establishing an application procedure for variances from standards 

overseen by agency officials with whom employees can request a 

conference, whereas under OSHA regulations, employees can request a 

variance application hearing, which will be heard by an administrative law 

judge;

• requires reporting of all workplace accidents, illness, and injuries to DOE, 

but OSHA regulations require the reporting of certain incidents; 

• authorizing DOE to accept hazard controls in certain nonoperational 

facilities that are not otherwise fully compliant with applicable regulations 

for worker health and safety, whereas OSHA regulations do not. 

Page 16
Enclosure 

Page 21 GAO-13-497R Worker Safety and Health 

Objective 2: Views on Whether Part 851 Is 

Equally, Less, or More Protective 

• DOE, Labor, and OSHA officials and the union and 

contractor representatives we interviewed had 

sometimes divergent views on whether Part 851 

regulations are equally, less, or more protective than 

OSHA regulations and the OSH Act.2

Page 17

2Because this information is derived from interviews of a nonprobability sample of contractor and 

union representatives, the views we present for these representatives are their views only and 

are not generalizeable to other contractors and union representatives. 
Enclosure 

Page 22 GAO-13-497R Worker Safety and Health 

Objective 2: Views on Whether Part 851 Is 

Equally, Less, or More Protective 

Part 851 Regulations Considered Equally Protective: 

• DOE officials and union and contractor representatives 

agreed that Part 851 is at least as protective because it 

incorporates essentially all OSHA standards and has a 

general duty clause, as does the OSH Act. 

Page 18
Enclosure 

Page 23 GAO-13-497R Worker Safety and Health 

Objective 2: Views on Whether Part 851 Is 

Equally, Less, or More Protective 

Part 851 Regulations Considered Less Protective:

• Part 851 includes an industry standard for respiratory 

protection, which contractor representatives cited as being 

less protective than OSHA’s respiratory protection standard. 

In contrast, DOE officials noted that because Part 851 also 

incorporates by reference OSHA’s respiratory protection 

standard, Part 851 cannot be less protective.

Page 19
Enclosure 

Page 24 GAO-13-497R Worker Safety and Health 

Objective 2: Views on Whether Part 851 Is 

Equally, Less, or More Protective 

Part 851 Regulations Considered More Protective:

• DOE and OSHA officials as well as union and contractor representatives agreed 

that at least some Part 851 regulations are probably more protective than OSHA 

regulations. However, DOE officials, union representatives, and contractor 

representatives sometimes disagreed on which Part 851 regulations are more 

protective. 

• Beryllium Standard. According to DOE officials and union representatives, 

Part 851 is more protective because it has an enhanced standard for 

beryllium, including a lower airborne beryllium level that triggers monitoring 

and protective actions. OSHA recognizes that its exposure limit may not 

provide adequate worker protection.3

Page 20

3According to OSHA officials, OSHA is currently developing a proposed standard for beryllium.
Enclosure 

Page 25 GAO-13-497R Worker Safety and Health 

Objective 2: Views on Whether Part 851 Is 

Equally, Less, or More Protective 

Part 851 Regulations Considered More Protective: (continued)

• DOE officials and union representatives stated other industry 

standards in Part 851 are more up to date than OSHA standards 

(e.g., air exposure limits for chemicals). However, Labor officials 

said the general duty clause of the OSH Act might require 

compliance with more current industry standards, but also 

acknowledged that it is difficult to prevail in an employer’s 

challenge to enforcement actions brought under the clause. 

• DOE officials and contractor representatives stated the electrical 

standards in Part 851 are more up to date and protective. 

Page 21
Enclosure 

Page 26 GAO-13-497R Worker Safety and Health 

Objective 2: Views on Whether Part 851 Is 

Equally, Less, or More Protective 

Part 851 Regulations Considered More Protective: (continued)

• OSHA regulations do not address certain hazards at DOE sites, which are addressed 

in Part 851. 

• Explosives. DOE officials and contractor representatives said that Part 851’s explosive safety standards are more protective than OSHA standards because 

OSHA does not have explosive safety standards specific to nuclear 

environments, which exist at DOE sites.

• Firearms. DOE and OSHA officials said that Part 851 has safety standards for firearms as used at DOE sites but that OSHA does not have comparable 

standards. 

• Lasers. DOE officials and contractor representatives said that Part 851’s laser safety standard is more protective because relevant OSHA standards only apply to construction activities, which would not cover all laser operations at DOE 

sites. However, OSHA officials said that, although OSHA does not have an 

industry standard specifically for lasers, other OSHA standards—such as eye 

protection standards—would protect workers from injurious light.

Page 22
Enclosure 

Page 27 GAO-13-497R Worker Safety and Health 

Objective 2: Views on Whether Part 851 Is 

Equally, Less, or More Protective 

Part 851 Regulations Considered More Protective:

• OSHA regulations generally do not require employers to establish certain safety 

and health programs, which are addressed in Part 851. 

• Worker Safety and Health Program. DOE officials and union representatives 

said such programs enhance protectiveness by ensuring proactive and 

comprehensive attention to hazards at DOE sites. According to one DOL 

official, OSHA encourages employers to develop such programs but does 

not require them, except in the area of construction. 

• Functional Areas. DOE officials and union representatives said that to 

ensure attention to common DOE site hazards, Part 851 requires health and 

safety programs tailored to 10 specific areas, such as industrial hygiene and 

firearms safety. OSHA officials said similar OSHA regulations are limited to 

only certain substances, hazards, or standards. Contractor representatives 

noted, however, that Part 851 regulations for some of these 10 areas are 

mostly duplicated by OSHA standards and only equally protective.

Page 23
Enclosure 

Page 28 GAO-13-497R Worker Safety and Health 

Appendix I: Chronology Illustrating External 

Regulation Proposals

Page 24
Enclosure 

Page 29 GAO-13-497R Worker Safety and Health 

(361456) 

Appendix I: Chronology Illustrating External 

Regulation Proposals

Page 25
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