fashion, general agency missions. Thus EPA is concerned with air and water as well as safe disposal aspects of the problem; the Occupational Safety and Health Administration regulates exposure in the workplace; the Minning and Safety Enforcement and Safety Administration is involved with mining aspects; the transportation agencies are charged with the duty of assuring safe transport of these materials; and so forth.161 However, perhaps since the authority is so uncertain, there has been little meaningful Federal activity pursuant to those general provisions of law. For example the Consumer Product Safety Commission, under the broad language of its organic act and the Hazardous Substances Act, could regulate NARM sources such as radium in consumer products. But the CPSC has declined to do so.162 Still other agencies charged with various responsibilities concerning radioactive materials-such as the Nuclear Regulatory Commission-lack legal authority to act in this area,163

Perhaps if all that authority were centered in one agency or if an effective coordinating device existed-then present legal authority to control NARM might be sufficient. The problem in this area is, as an EPA official recently observed, "the spread of authorities and the inherent difficulties of assuring consistency of regulation." 164 EPA, as one agency, has suggested that new legislation is not required.165 The NRC task force however thought otherwise. After a careful review of present Federal and State authority over NARM, the task force concluded:

The regulation of naturally occurring and acceleratorproduced radioactive material (NARM) is fragmented, nonuniform and incomplete at both the Federal and State level.166

Authority to regulate NARM by the Federal Government is fragmented among many departments and commissions and agencies each having some limited authority. The jurisdictions of those agencies overlap in some areas and leave gaps in others. Existing authorities have not been uniformly exercised.167

It is clear that regulation by the States has not filled the gaps left by Federal inaction: only 30 States have established licensing programs for NARM users, and seven appear to have taken no regulatory action at all in this regard.168 Of course the States are powerless to regulate these materials once they enter interstate commerce. Thus the NRC task force recommended that the Commission seek legislative authority to regulate naturally occurring and accelerator-produced radioactive materials.

183 Loc cit., pp. 37-42.

164 EPA Responses, supra, fn. 151.

165 Ibid. Apparently EPA believes that the Toxic Substances Control Act may have applicability to at least naturally occurring radioactive materials. There is some language in the definition section which could be construed to support that proposition. Public Law 94-469, sec. 3(2)(A) (1) (which mentions chemical substances "occurring in nature"). However in the published legislative history of that Act there does not appear to be, in over 700 pages, a single reference to this coverage. Indeed the only references our resarch has been able to discover in this regard are to the exclusions of nuclear materials from coverage by the Act. Therefore whether the Toxic Substances Act applies to NARM at least has no express basis in the legislative history of that enactment.

164 NRC Report, op cit., p. 3.

17 Ibid., p. 36.

108 Ibid., p. 3.

Finally, confusion-for the public, the regulated industries, even for the Government itself-is too often a mark of Federal activities in radiation health and safety. Consumer products which emit low-level radiation are but one example of that situation. Radiation safety in consumer products would, it might be thought, be lodged in the Consumer Product Safety Commission. But that is not the case; indeed CPSC, although it has some authority to do so, has not a single rule or standard on the subject. When CPSC was created and EPA before it, HEW and the Food and Drug Administration retained authority for radiation aspects of the electronic products. At present FDA has regulatory performance standards for television receivers, microwave ovens, X-ray baggage inspection units and other radiation emitting electronic devices 169 as well as a separate bureau devoted solely to radiation hazards. However this consumer product safety function is not vested exclusively in FDA. It all depends on the radioactive materials. If it is found in the earth, such as radium, and used in a product intended for consumers, then no agency presently has explicit jurisdiction. On the other hand, if it is reactor produced-such as Americium 241 used in many smoke detectors-or is a nuclear source material, then the Nuclear Regulatory Commission regulates the materials and, indirectly, the product. The NRC has other common consumer products within its jurisdiction, including: coloring agents in ceramic dishware that contain uranium; welding rods which use thorium; and timepieces that are illuminated with tritium.170 Thus the Consumer Product Safety Commission does not regulate this aspect of consumer products. The Nuclear Regulatory Commission, with its various responsibilities over nuclear power facilities, finds smoke detectors, watches and even ceramic dishware within its jurisdiction. And the lion's share of this regulatory function is located in the Food and Drug Administration.

Legislative action is, in our opinion, required in order to effectively protect the public from various hazards of radiation. Existing federal programs, as this review demonstrates, are at present scattered, sometimes inadequate and certainly uncoordinated. What is needed is a central focus in the Federal Government to assure that radiation exposure, whatever its source or application, is subject to coordinated federal controls and programs.170a What is needed is a lead Federal agency for radiation safety.

The Environmental Protection Agency has attempted to assume that role, but its present statutory authority has not proven equal to the task. The statute that was originally adopted in 1959 for the Federal Radiation Council was not intended to create a lead Federal agency; it was instead a mechanism to bring together on a single body representatives of various departments and agencies. It was a sort of roundtable on Federal radiation safety programs, empowered only to submit proposals to the President.

Radiation safety needs a much stronger emphasis at the Federal level. The Environmental Protection Agency should be granted powers in this field similar to those it already possesses for control of toxic substances. We recognize that, in order to assume this responsibility, radiation safety at EPA needs a much stronger emphasis than

100 Hearings, supra. fn. 105, p. 28.

10 Information provided to the Committee by the Nuclear Regulatory Commission. 10 Whether certain radiation sources should be excluded from this new proposed authority is a question we leave for future consideration.

in the past; implementation will require a greater commitment by EPA, and some additional funding from Congress. Other agencies have acknowledged EPA's potential leadership role in this area. There is, an official of the NRC recently acknowledged, "some lack of balance in radiation protection and some costly duplication of efforts." That NRC representative also noted that, the "role played by the Environmental Protection Agency, within the current alignment of radiation protection responsibilities, is central to achieving needed improvements." 171 We agree.

As this discussion demonstrates, there are at present numerous agencies which administer numerous statutes in the field of radiation health and safety. There is no central focus for those activities and programs. EPA, which already has a handful of applicable statutes within its jurisdiction, should be charged with that responsibility through legislative action.11a EPA should be authorized to request action from another agency, if EPA determines that a hazard exists which could be addressed by that agency under separate statutory authority. EPA would also have the authority to set reasonable timetables for the other agency's consideration. Subsequent inaction by the corresponding agency on a recognized hazard would allow EPA to intervene and establish enforceable standards in that area. Although it is somewhat beyond the scope of this discussion, we also believe that Congress should consider establishing premarket testing for products which utilize radioactive materials, and that the burden should be on the manufacturers to demonstrate that those products are safe for public distribution prior to their appearance on the market.171b

F. INTERAGENCY COORDINATION EFFORTS

Overlapping responsibility and duplication of effort are matters of principal concern to the agencies themselves. No government unit is comfortable with awkwardly shared jurisdiction, with all the uncertainty and confusion that situation typically produces. Thus, there is throughout the agencies a common interest in obtaining clear lines of authority and jurisdiction. For that and other reasons, the agencies on their own initiative have in a number of instances acted to minimize or eliminate potential conflicts by clarifying statutory ambiguities. Failure of interagency coordination, it must be noted, is partly a consequence of the inadequacies of top regulatory officials. Some Federal health and safety agencies have over the past several years been the subject of serious criticism on that account. Like so much else in the regulatory process, able men and women in responsible positions are as important as any other single factor in assuring effective, coordinated federal action.

171 Hearings, supra fn. 105, p. 349.

171 Whether amendments to the Toxic Substances Control Act would be a suitable vehicle for that legislation is a question that merits careful consideration. Earlier, in footnote 165, we pointed out that there is no clear basis for applying that Act to regulate naturallyoccurring radioactive materials. It is certainly true that the Act has no present application to radiation sources which do not emanate from chemical substances, such as machine produed or non-ionizing radiation. In express terms the Act precludes EPA from involvement in nuclear materials. Thus, if the Toxic Substances Act now has application to radiation safety it would appear to be limited to naturally occurring radioactive materials-if even that.

171b In that light we also believe that Congress should consider granting the authority to order pre-market testing to other agencies as part of their regulatory authority. For example the Consumer Product Safety Commission could, in our opinion, possibly be more effec tive in protecting against consumer injuries if it had that power. It is a matter worthy of serious consideration by Congress.

24-275 - 78 - 24

It is important to recognize the limitations of wholly informal and voluntary interagency understandings. One major limitation on such action is illustrated by the fairly recent efforts of the Secretary of Labor to achieve interagency coordination of safe working conditions standards.

As previously noted, Labor's Occupational Safety and Health Administration was precluded by Congress from setting working condition standards in areas where other Federal agencies "exercise statutory authority to prescribe or enforce standards or regulations affecting occuptional safety or health." 172 The statute also provided that the Secretary of Labor should in a report to Congress recommend any legislation which in his judgment was necessary to prevent duplication and overlap between OSHA and other agencies. The report, after receiving one extension, was due for submission in October 1974. To date the report has not been submitted, and the reasons for that delay shed light on the problems involved in achieving interagency coordination on major jurisdictional matters.

Back in 1974 the Secretary of Labor did prepare a draft report which offered no legislative recommendations, but did advance an important interpretation of OSHA jurisdiction.173 The interpretation stressed the statutory requirement that the other agency "exercise" its legal authority in order to preclude OSHA intervention. Thus, in the opinion of the Labor Department, an unimplemented or only partially exercised statutory responsibility would not be sufficient, and in those instances OSHA could establish enforceable standards.174 For the Department of Labor and OSHA, this was by no means a theoretical exercise. There had been continuing conflicts between OSHA and other agencies over the former's ability to prescribe standards and conduct workplace inspections. For example the Transportation Department's Federal Railroad Administration had statutory responsibility for safety and health of railroad workers, but had only partially exercised that authority. For the most part, FRA regulations had been confined almost exclusively to those aspects of the railway industry that affect "over-the-road" operations. As a result workers in nonoperational parts of the industry, such as in railroad offices or repair shops, enjoyed no FRA working condition protections.175 OSHA's assertion that it could fill those and other gaps in coverage was vigorously disputed by both the other agencies involved, and by the industries who would be subject to that regulation.

In conformity with executive branch requirements, the draft report was first submitted to the Office of Management and Budget, which in turn circulated it to the various concerned departments and agencies. The result, to quote OMB Director James Lynn, was "considerable adverse comment" from no fewer than four Cabinet DepartmentsDefense, Interior, Commerce and Transportation all took strenuous exception to the Secretary of Labor's proposed interpretation of OSHA powers.176 Reduced to essentials, all objected to the notion that Labor

173 See fn. 63 supra, and accompanying text.

173 Department of Labor Proposed Report, see fn. 64 supra.

174 Ibid.

175 See Southern Ry. Co. v. OSHRC, 539 F2d 335 (4 Cir. 1976) and Southern Pac. Transp. Co. v. Usery, 539 F 2d 386 (5 Cir. 1976).

178 James T. Lynn. Director, Office of Management and Budget to John T. Dunlop, Secretary of Labor, May 24, 1975. Copy provided to the Committee by OSHA.

had the power to determine whether a separate agency had sufficiently implemented its mandate. As one response declared

The Department of Defense disagrees with the thesis that the Department of Labor, by virtue of the Occupational Safety and Health Act has the legal authority to render such a judgment against another independent Federal agency.177 No department response to OMB argued expressly that the mere presence of statutory authority was enough to preclude OSHA jurisdiction, or that the existence of such separate authority should be interpreted to exempt certain industries altogether from OSHA powers. But whether OSHA preemption was premised on statutory authority alone or on statutory authority only partially implemented, the result is the same: some workers receive no adequate protection, and at least classes of employees would therefore be exempt. That was certainly the case with some types of railway occupations.178 In the draft report, the Secretary of Labor stressed the comprehensive mandate of ÒSHA's act and argued that the absence of protections against recognized hazards was sufficient basis for OSHA action:

It was clearly not the intent of [the Act] to exempt entire industries on the basis of an exercise by another agency of its authority by prescribing limited standards covering only some of the hazards in the industry.179

The ensuing controversy was marked by a dog-in-the-manger quality: certain agencies did not want OSHA doing what they themselves were unwilling to do. The outcome of the dispute was deadlock. The agencies could not agree, and OMB was unwilling to concur in the release of the report to Congress until agreement was reached. Although OMB indicated its willingness "within the limits of our ability" to assist the Labor Department in reaching an agreement,180 it does not appear as though OMB exercised a leadership role; instead OMB seems to have assumed the stance of impartial umpire. At one point in the dispute, OMB Deputy Director Frederic V. Malek suggested that "irresolvable legal questions regarding agency jurisdictions should be referred to the Attorney General." 181 (That general course for resolution of agency disputes, in our opinion, might be inappropriate and unsatisfactory when an independent regulatory commission is involved.182) Of course Labor, lacking executive support, was administratively unable to impose its interpretation on its coequals, or even to release the report without the concurrence of OMB. In consequence the report, now 3 years overdue, has never been. submitted to Congress-and at least some of the jurisdictional disputes which prompted the interpretation continue unabated.

There is an important lesson in the OSHA dispute: major issues of jurisdiction are best resolved by Congress. The provision in OSHA's organic act was entirely negative in character. It precluded action by

177 Martin R. Hoffman, General Counsel, Department of Defense to Roy L. Ash, Director, Office of Management and Budget, Jan. 20, 1975. Copy provided to the Committee by OSHA.

178 See fn. 175, supra.

179 Department of Labor Report, see fn. 64, supra.

190 Lynn to Dunlop, fn. 176, supra.

181 Frederic V. Malek, OMB Deputy Director to Secretary of Defense, et al., April 25, 1973. Copy provided to the Committee.

182 See our discussion of the independent status of the commissions in Chapter 1.