This article was written for the ConsensusDocs newsletter and first appeared here.

Most contractors are familiar with the myriad of labor and safety regulations intended to safeguard the health and safety of workers. Many contractors will be equally familiar with the maze of forms and reports, the maintenance of safety personnel, safety walks and talks, and the many other measures intended to prevent and prepare for accidents. Less known among contractors and construction industry leaders is the regulatory framework establishing safety requirements and the ramifications of ignoring safety-related rules. Knowing and understanding the jurisdiction and authority of the agencies monitoring safety compliance on your project is critical to avoiding administrative ordeals and audits that could add days or weeks to your schedule and frustrate your staff.

The Department of Energy’s Worker Safety and Health Program

Under the Occupational Safety and Health Act of 1970, as amended (OSH), the Department of Labor’s 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. Several federal agencies have developed their own safety programs and conduct their own enforcement of those regulations independent of OSHA. For example, projects receiving funding from the Department of Energy (DOE) are subject to additional oversight of their safety programs by this agency. DOE directly manages its own Worker Safety and Health Program (WSHP), codified at 10 C.F.R. § 851, et seq., and will enforce compliance with its WSHP at all DOE sites. A “DOE site” is defined as a DOE-owned or -leased area or location or other area or location that DOE controls, where a contractor performs activities and operations in furtherance of a DOE mission. This broad definition encompasses a wide range of facilities and operations, including those not directly managed by the DOE but still under its control. The contractor at such a site must be aware of the specific requirements and procedures of the DOE under the WSHP and the ramifications of violating these regulations.

DOE’s WSHP vs. OSHA Regulations

There are many similarities between the requirements of the WSHP and OSHA regulations considering that the WSHP incorporates by reference almost all OSHA standards. Like OSHA, WSHP also 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.

However, there are several key differences contractors must be aware of when working on a DOE site. For example, OSHA officials must obtain a court order to force an employer to stop work because of an imminent danger. However, the WSHP authorizes DOE to issue compliance orders that among other things can mandate a work stoppage or action to remedy a hazard immediately. The DOE also requires contractors to prepare a written worker safety and health program that addresses all WSHP requirements and applicable functional areas, whereas OSHA regulations generally do not require such programs. Moreover, the DOE requires 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. Overall, the DOE requires more involvement from all workers in developing worker safety and health program goals, objectives, and performance measures and identifying and controlling workplace hazards. OSHA regulations do not have a generic requirement for such worker participation.

The WSHP also contains standards that relate to hazards that are not covered by OSHA standards such as firearms safety and standards for certain hazards, e.g., beryllium, which contain different requirements than OSHA standards. Finally, the DOE requires reporting of all workplace accidents, illness, and injuries to DOE; OSHA regulations require the reporting of only certain incidents. This all amounts to extra time and money to prepare safety plans, educate and train workers, and report every safety violation on the project.

General Compliance Requirements for Contractors

Pursuant to the WSHP, contractors are required to develop and submit a written worker safety and health program that outlines how they will comply with the requirements set forth in Subpart C of 10 CFR Part 851, which pertains to specific program requirements prior to work commencing. This program must be submitted to the appropriate Head of DOE Field Element for approval and has the potential to cause delay at the beginning of the project if not timely summited and approved. The program should be comprehensive covering all aspects of worker safety and health applicable to the contractor’s scope of work and must be integrated with other site-specific worker protection activities and the safety management system. If more than one general contractor is working on a project they must collaborate on the formation of this safety program. The DOE has 90 days to review and provide written approval of the program. If not specifically approved or rejected within this timeframe the program is deemed approved.

Specific Compliance Requirements

Subpart C of the WSHP details the specific program requirements that all contractors must implement and follow during the project. 10 C.F.R. § 851.20-27. Several of the key compliance metrics include:

i.  Hazard Identification and Control (10 CFR § 815.21): Contractors are required to identify and assess workplace hazards associated with DOE activities. They must develop and implement hazard control measures to mitigate risks to workers’ safety and health;

ii.  Workplace Safety and Health Committees (10 CFR § 815.22): This section mandates the establishment of workplace safety and health committees at DOE contractor facilities. These committees facilitate communication between management and employees regarding safety issues and help in developing and implementing safety programs;

iii.  Training and Education (10 CFR § 815.23): Contractors must provide comprehensive training and education programs to employees to ensure they have the necessary knowledge and skills to perform their jobs safely. Training should cover hazard recognition, proper use of personal protective equipment (PPE), emergency procedures, and other relevant topics;

iv. Accident Investigation and Reporting (10 CFR § 815.25): Contractors are required to promptly investigate and report all work-related accidents, injuries, illnesses, and near misses. This section outlines the procedures for conducting thorough accident investigations, documenting findings, and implementing corrective actions to prevent recurrence; and

v.  Recordkeeping (10 CFR § 815.27): Contractors must maintain accurate records related to their compliance with the Worker Safety and Health Program requirements, including training records, hazard assessments, accident reports, and medical surveillance data.

There is a variance request procedure outlined in Subpart D of 10 CFR § 815, but as a general rule contractors can expect to implement all of these measures at DOE-controlled sites.

So, You Had an Accident: What Happens Next?

Despite your diligent efforts to train and protect your workers, accidents remain a possibility at even the safest worksites. When evaluating worksite accidents, the DOE has implemented a policy of proportionality in assessing penalties on the contractor. The DOE’s stated policy is “to consider the particular facts of each noncompliance in determining whether enforcement sanctions are appropriate and, if so, the appropriate magnitude of those sanctions. DOE may well deviate from this policy statement when appropriate in the circumstances of particular cases.” 10 C.F.R. § Pt. 851, App. B(a).

One of the most important factors considered by the DOE when investigating a safety violation is whether the contractor self-reported the incident or unsafe condition. Therefore, the first step any contractor should take if an accident does happen is to self-report the incident to the DOE. Many DOE sites will employ the use of a voluntary Noncompliance Tracking System (NTS) which allows contractors to elect to report non-compliances. Self-identification of a non-compliance is a crucial factor in evaluating a reduction in the civil penalty amount. Consideration of self-identification is linked to, among other things:

i.  whether prior opportunities existed to discover the violation, and if so, the age and number of such opportunities;
ii.  the extent to which proper contractor controls should have identified or prevented the violation; whether discovery of the violation resulted from a contractor’s self-monitoring activity;
iii.  the extent of DOE involvement in discovering the violation or in prompting the contractor to identify the violation; and
iv.  the promptness and completeness of any required report.

The Preliminary Notice of Violation

Pursuant to 10 CFR part 851 subpart E, the Enforcement Director initiates the enforcement process by initiating and conducting investigations and inspections and issuing a Preliminary Notice of Violation (PNOV) with or without a proposed civil penalty. The DOE contractor is required to respond in writing to the PNOV within 30 days, either:

i.  Admitting the violation and waiving its right to contest the proposed civil penalty and paying it;
ii. Admitting the violation but asserting the existence of mitigating circumstances that warrant either the total or partial remission of the civil penalty; or
iii.  Denying that the violation has occurred and providing the basis for its belief that the PNOV is incorrect.

After evaluation of the contractor’s response, the Enforcement Director may determine: (1) That no violation has occurred; (2) that the violation occurred as alleged in the PNOV but that the proposed civil penalty should be remitted in whole or in part; or (3) that the violation occurred as alleged in the PNOV and that the proposed civil penalty is appropriate, notwithstanding the asserted mitigating circumstances. In the latter two instances, the Enforcement Director will issue a Final Notice of Violation (FNOV) or an FNOV and proposed civil penalty.

The Final Notice of Violation

If a violation is determined, the DOE may issue an FNOV, which includes a statement specifying the requirement to which the violation relates, a statement of the basis for the determination, and the remedy. This will depend on the severity level of the violations.

A Severity Level II violation is an other-than-serious violation. An other-than-serious violation occurs where the most serious injury or illness that would potentially result from a hazardous condition cannot reasonably be predicted to cause death or serious physical harm to employees but does have a direct relationship to their safety and health. A Severity Level II violation would be subject to a base civil penalty of up to 50% of the maximum base civil penalty or $59,395 per day per violation. This is significant considering the maximum penalty OSHA may assess is $16,131 per day per violation.

A Severity Level I violation is a serious violation. A serious violation shall be deemed to exist in a place of employment if there is a potential that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use, in such place of employment. A Severity Level I violation would be subject to a base civil penalty of up to 100% of the maximum base civil penalty of $118,790 per day per violation.

The DOE also has the option of reducing the contract fee by the amount of the violation but must elect either a contract fee reduction or the assessment of civil penalties.

Compliance Orders

In addition to the power to enforce monetary penalties on contractors, the DOE may also issue a Compliance Order pursuant to 10 CFR § 851.4. Compliance Orders mandate remedies or work stoppages to address situations that violate or potentially violate the requirements of the WSHP. This could mean days or weeks of work stoppages while the DOE investigates the incident or alleged violation. Compliance with these Orders will mean collecting all the safety documentation to produce to the DOE and preparing for multiple days of in-person interviews and site investigations by DOE personnel. This can be quite disruptive to a worksite, and the more prepared you are going in, the better the chances of avoiding major project delays.

Corrective Action to Prevent Recurrence

The promptness (or lack thereof) and extent to which the DOE contractor takes corrective action including actions to identify root cause(s) and prevent recurrence may influence the total amount of the civil penalty. In short, the civil penalty may be increased if the initiation of corrective action is not prompt or if the corrective action is only minimally acceptable. In weighing this factor, consideration will be given to, among other things, the appropriateness of the action and the timeliness and degree of initiative associated with the corrective action. The comprehensiveness of the corrective action will also be considered considering factors such as whether the action is focused narrowly on the specific violation or broadly on the general area of concern.

There may be circumstances in which a violation of a DOE worker safety and health requirement results in part or entirely from a direction given by DOE personnel to a DOE contractor to either take or forbear from taking an action at a DOE facility. In such cases, DOE may refrain from issuing an NOV, or may mitigate, either partially or entirely, any proposed civil penalty, provided that the direction upon which the DOE contractor relied is documented in writing, contemporaneously with the direction.

Contractors have the opportunity to challenge an FNOV through administrative appeal provisions. They may petition the Office of Hearings and Appeals for review of the final notice within 30 calendar days from receipt of the FNOV.

The DOE encourages voluntary resolution of noncompliance situations either informally before the initiation of the enforcement process or by consent order before or after any formal proceeding has begun.

Mitigating Risks and Ensuring Compliance

In navigating the complexities of DOE’s safety regulations, general contractors can adopt several proactive strategies to mitigate risks, enhance compliance, and promote a culture of safety excellence across their construction projects:

i.  Invest in Continuous Education and Training:

Prioritize ongoing education and training initiatives to ensure that personnel remain current on the latest safety regulations, best practices, and emerging technologies relevant to their roles and responsibilities.

ii.  Implement Proactive Hazard Identification and Mitigation Strategies:

Proactively identify, assess, and mitigate potential safety hazards through comprehensive hazard assessments, job hazard analyses, and risk mitigation strategies tailored to the specific requirements of each construction project.

iii.  Conduct Regular Safety Audits and Inspections:

Proactively conduct regular safety audits, inspections, and reviews to assess compliance with DOE’s safety regulations, identify areas for improvement, and implement corrective actions to address deficiencies and enhance overall safety performance.

iv.  Leverage Technology for Enhanced Safety Performance:

Harness the power of technology to document the safety management processes, to facilitate real-time monitoring of safety performance. Surveillance of work site activities provides valuable and irrefutable evidence of compliance with safety protocols.

v.  Foster Collaboration and Communication:

Promote open communication, collaboration, and knowledge sharing among project stakeholders to facilitate the exchange of critical safety information, lessons learned, and best practices for enhancing safety performance and compliance.

By embracing these proactive strategies and integrating them into their construction management practices, general contractors can navigate the regulatory landscape of DOE’s safety program with confidence, mitigate potential risks, and ensure the safety and well-being of workers across their construction projects on DOE-controlled sites.

For more information, please contact Lucas T. Daniels & Benjamin J. Hochberg.