GOODYEAR ATOMIC CORPORATION, APPELLANT V. STATE EX REL. ESTO MILLER No. 86-1172 In the Supreme Court of the United States October Term, 1986 On Appeal From The Supreme Court Of Ohio Brief for the United States As Amicus Curiae This brief is submitted in response to the Court's order inviting the Solicitor General to express the views of the United States. TABLE OF CONTENTS Questions presented Statement Discussion Conclusion QUESTIONS PRESENTED Whether the State of Ohio, consistently with the Supremacy Clause, U.S. Const. Art. VI, Cl. 2, and the Atomic Energy Act, 42 U.S.C. 2011 et seq., may subject a private contractor operating a federally-owned nuclear production facility to a supplemental workers' compensation award for violation of a state safety standard. STATEMENT 1. To encourage private involvement in the development of nuclear energy for peaceful purposes, the Atomic Energy Act of 1954, ch. 1073, 68 Stat. 919 (Atomic Energy Act or 1954 Act), ended the absolute government monopoly over nuclear energy that had been established by the Atomic Energy Act of 1946, ch. 724, 60 Stat. 755. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 63 (1978). The 1954 Act permits private involvement under strict federal control. It requires that a private party obtain a federal license from the Nuclear Regulatory Commission (formerly the Atomic Energy Commission) /1/ before it may possess, handle, or use "special nuclear material", "source material," and "byproduct material" (42 U.S.C. 2014(e), (z) and (aa), 2071-2078, 2091-2099, 2111-2114). These are, respectively, the materials used in, processed for use in, or produced by nuclear reactions. /2/ The 1954 Act also requires that a private party secure a federal license before it may acquire or use a nuclear reactor or any other device capable of utilizing or producing special nuclear material (42 U.S.C. 2131-2134). Licenses can be obtained for industrial, commercial, research, and therapeutic purposes (42 U.S.C. 2073-2074, 2093-2094, 2111-2112, 2131-2134). Licensees under this system supplement, and in no way displace, the federal government as an operator of nuclear facilities. In particular, a continuing federal operational role is mandated for "nuclear production facilities" -- facilities that are capable of producing special nuclear material, the essential fuel for reactors, in a manner that may affect the public health or safety or in quantities significant to the national defense and security (42 U.S.C. 2014(v)). The 1954 Act requires that the United States be the exclusive owner of all such production facilities, except those which are licensed by the Commission (of which, in fact, there are none like the Portsmouth plant) or those which are engaged in research and are incapable of producing enough fuel to make an atomic weapon (42 U.S.C. 2061(a)). /3/ Although the 1954 Act expressly preserved state regulatory authority over the generation, transmission, and sale of electric power (42 U.S.C. 2018), Congress in 1954 recognized no other role for the states with respect to regulation of nuclear energy. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 207 (1983). In 1959, Congress carefully expanded states' regulatory roles (Pub. L. No. 86-373, 73 Stat. 688), providing that, upon a state's adoption of adequate safety standards, the Commission may enter into a cooperative agreement transferring to the state the power to regulate source material, byproduct material, and quantities of special nuclear material not sufficient to form a critical mass (i.e., to sustain a chain reaction). See 42 U.S.C. 2021(a), (b), and (g). The 1959 amendments, however, expressly require the Commission to retain responsibility for regulating both the construction and operation of "utilization facilities" (facilities that use special nuclear material, including power plants (42 U.S.C. 2014cc)) and any privately-owned production facilities (42 U.S.C. 2021(c)(1)). Of course, the 1959 amendments make no provision for state regulation of federally-owned facilities, such as the non-licensed, non-research production facilities now under the jurisdiction of the Department of Energy. To take advantage of the skill and expertise of private industry, the Department of Energy is authorized to contract with private parties to operate the federally-owned production facilities (42 U.S.C. 2061(b); see Carson v. Roane-Anderson Co., 342 U.S. 232, 235 (1952)). The Department of Energy must maintain complete control over such facilities, and all contractors are subject to its direction and supervision (42 U.S.C. 2061(b)). The Department has specific authority to set safety standards for the use and handling of radiological material at such facilities (42 U.S.C. 2201(b)), to require contractor compliance with safety and security regulations (42 U.S.C. 2061(b)(2)(C)), and most broadly, to regulate the operation of its facilities "in order to protect health and to minimize danger to life or property" (42 U.S.C. 2201 (i)(3)). Pursuant to this authority, the Department has issued a series of orders that set forth a comprehensive occupational safety and health program for federally-owned production facilities. See Safety Analysis and Review System, DOE Order 5481.1A (Aug. 13, 1981); Occupational Safety and Health Program for DOE Contractor Employees at Government-Owned Contractor-Operated Facilities, DOE Order 5483.1A (June 22, 1983). /4/ 2. This case involves a federally-owned nuclear production facility in Piketon, Ohio -- the Portsmouth Gaseous Diffusion plant (J.S. App. 75a). The facility produces "special nuclear material" (enriched uranium) for civilian and military uses. Aside from a federal facility in Paducah, Kentucky, the Portsmouth plant is the only operating uranium enrichment facility in the Nation; and it is the only facility in the Nation that produces fuel that meets the needs of the Navy's nuclear ships and submarines (J.S. App. 31a). The facility uses classified technologies, and a security clearance is required for full access to the plant. At the times relevant to this case, the facility was operated, under contract with the Department of Energy, by appellant Goodyear Atomic Corporation (J.S. App. 1a). Goodyear was contractually obliged to comply with DOE safety standards, including a detailed standard for scaffold safety. See 29 C.F.R. 1910.28, incorporated by reference in DOE Order 5483.1A, at I-1. On July 30, 1980, Esto Miller, a maintenance mechanic employed by Goodyear at the Portsmouth plant, fell of a government-owned scaffold when his glove caught on a protruding bolt. He injured his ankle and heel. He applied to the Industrial Commission of Ohio for workers' compensation, for which Goodyear pays premiums to cover its Portsmouth employees. The claim was approved, and Miller received $9,000 in benefits (J.S. App. 10a). Miller then filed an application to the Industrial Commission for a supplemental award of 15% to 50% of the benefits already received. Ohio law provides for such a surcharge (the state insurance fund recoups the money through an increase in the premium paid by the employer) where the injury is caused by the employer's failure to comply with any specific health or safety requirement imposed by the state legislature or a state administrative agency. See Ohio Const. Art. II, Section 35; Ohio Rev. Code Ann. Section 4121.13(B) (Page 1985 Supp.). Miller alleged that Goodyear had violated Ohio Administrative Code 4121:1-5-03(D)(2), which provides, among other things, that "(e)xposed surfaces (on scaffolds) shall be free from sharp edges, burrs or other projecting parts." 3. The Department of Energy filed a brief amicus curiae opposing Miller's application to the Industrial Commission. The Department contended that the worker's compensation surcharge provision could not be applied to the Portsmouth plant consistently with the Atomic Energy Act and the Supremacy Clause, U.S. Const. Art. VI, Cl. 2. The Industrial Commission agreed that, "under the doctrine of federal preemption," the state safety requirement could not be applied to the federal facility (J.S. App. 15a). It therefore denied Miller's application without determining whether Goodyear had in fact violated the state scaffold standard. Miller filed a mandamus action in the Ohio Court of Appeals, seeking to compel the Industrial Commission to entertain his application. Goodyear was joined as a necessary party, but the federal government did not participate. /5/ The court ruled that Congress had not preempted the field of safety regulation of non-radiological hazards at nuclear production facilities. It further held that Ohio's "specific safety regulations" that apply to employers generally "are equally applicable to an entity that contracts with the federal government for operation of a nuclear power facility owned exclusively by the federal government" (J.S. App. 14a). The court therefore issued the writ of mandamus to the Industrial Commission. A divided Ohio Supreme Court affirmed (J.S. App. 1a-8a). Relying on Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), the majority broadly ruled that state safety regulations concerning non-radiological hazards were not preempted by the Atomic Energy Act (J.S. App. 1a-4a). The majority did not address Goodyear's separate argument (Br. 7-9) that, regardless of whether the Atomic Energy Act preempted state non-radiological regulation of private licensees, the Supremacy Clause exempted federally-owned facilities from state regulation because such regulation has not been authorized by Congress. Justice Wright, in dissent, agreed with Goodyear's Supremacy Clause argument. Relying on Hancock v. Train, 426 U.S. 167, 179 (1976), he concluded that congressional authorization would be required for application of state regulation to the federal facility and that no such authorization was present here (J.S. App. 4a-8a). DISCUSSION DISCUSSION The broad ruling of the Ohio Supreme Court -- that all state regulations of non-radiological hazards at federal as well as private facilities is lawful -- is clearly incorrect under the Supremacy Clause. The narrow question before the Ohio court, however, was not whether a state may in general regulate safety at nuclear facilities, or even at federal nuclear facilities, but whether the workers' compensation award that Goodyear was required to pay in any event could permissibly be increased by several thousand dollars. The judgment of the Ohio Supreme Court could thus be defended on the alternative and narrower ground that the surcharge sought to be imposed on Goodyear is not a "regulation" of the federal plant, and hence that the Supremacy Clause is not implicated at all. A holding to that effect, though potentially damaging to federal interests, and entailing difficult legal questions, would not be as obviously incorrect as the court's broad pronouncement. In our view, there is no need for this Court to confront those difficult legal issues now. The question whether Ohio's workers' compensation scheme effects an impermissible "regulation" of federal nuclear facilities has been substantially altered by an intervening change in Ohio law. We therefore recommend that the decision of the Ohio Supreme Court be vacated and the case remanded so that that court may consider the effect on its ruling of the intervening development. Bell v. Maryland, 378 U.S. 226, 238-241 (1964). /6/ 1. The Ohio Supreme Court broadly ruled that states are free to regulate non-radiological safety hazards at nuclear facilities. Whatever the correctness of that ruling with respect to private facilities, /7/ as to which the decision below is pure dictum, the ruling is clearly incorrect as applied to a federally-owned facility. Beginning as early as M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819), this Court has held that the activities and installations of the United States are exempt under the Supremacy Clause from direct state regulation, unless such regulation has been clearly and unambiguously authorized by Congress. EPA v. State Water Resources Control Board, 426 U.S. 200, 211 (1976); Hancock v. Train, 426 U.S. at 178-179; Mayo v. United States, 319 U.S. 441 (1943). "(W)here 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' the federal function must be left free' of regulation." Hancock v. Train, 426 U.S. at 179 (quoting Mayo v. United States, 319 U.S. at 447, 448 (footnote omitted)). The exemption applies even though the federal facility is managed by a private party under contract with the United States. Indeed, Hancock v. Train involved the Paducah, Kentucky, nuclear production facility, which is owned by the federal government and operated by a private contractor in the same manner as the Portsmouth plant at issue here. See 426 U.S. at 174 n.23. As Justice Wright pointed out in dissent (J.S. App. 6a-7a), there is no authorization for states to regulate federally-owned nuclear production facilities like the Portsmouth plant. The majority of the Ohio Supreme Court did not rule otherwise, since it erroneously thought that preemption analysis of the sort undertaken in Silkwood, which would be required for private facilities, was also called for here. Even appellee does not contend that federal law affirmatively authorizes state regulation of federal nuclear facilities, and no such contention could plausibly be maintained. As we have noted, while the Atomic Energy Act provides for a limited state regulatory role in circumstances not present here -- e.g., where the Commission enters into a cooperation agreement permitting a state to regulate "special nuclear materials in quantities not sufficient to form a critical mass" (42 U.S.C. 2021(b)) -- the Act does not provide for state regulation of federal production facilities like the Portsmouth plant. To the contrary, the Act requires the federal government to retain authority for regulating the operation of all production facilities (42 U.S.C. 2021(c)(1)) and to retain ownership and control of non-licensed, non-research production facilities (42 U.S.C. 2061(a)). The Act also specifically empowers the Department of Energy to set safety standards at federally-owned facilities (42 U.S.C. 2201(b) and (i); see also 42 U.S.C. 2061(b)(2)(C)). In short, contrary to the Ohio Supreme Court's ruling, direct state regulation of federal nuclear production facilities is clearly lacking congressional authorization and hence is invalid under the Supremacy Clause. /8/ 2. Despite the breadth of the Ohio Supreme Court's reasoning, this case, as it arose and as it was presented to that court, did not involve direct state regulation of the "instrumentalities or property" of the federal government. Rather, the case involved the imposition of a monetary workers' compensation surcharge on Goodyear, a private party, for activities conducted under contract with the federal government. The judgment appealed from can thus be defended on the theory that the imposition of this surcharge would not be an impermissible "regulation" of the Portsmouth plant; indeed, it is on that alternative ground that appellee principally relies. See Mot. to Aff. 5-9. Confined to those facts, the holding of the Ohio Supreme Court is actually quite narrow and, as far as we can tell at this time, not of widespread significance. And while the holding, thus confined, is troublesome both legally and practically for reasons not even adverted to by the Ohio Supreme Court, it is not as clearly incorrect as the court's broad pronouncement. a. Proper analysis of the narrow question actually presented here must begin with 40 U.S.C. 290, a federal statute that the Ohio Supreme Court ignored. That section expressly grants states the authority to apply their "workmen's compensation laws" to all lands and premises owned or held by the United States of America * * * and to all projects, buildings, constructions, improvements, and property belonging to the United States of America * * * in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within those exterior boundaries such place may be. The language and legislative history of this provision make clear that it is addressed to federal enclaves, areas over which the United States has assumed exclusive jurisdiction under U.S. Const. Art. I, Section 8, Cl. 17. See S. Rep. 2294, 74th Cong., 2d Sess. (1936); H.R. Rep. 2656, 74th Cong., 2d Sess. (1936). But the provision a fortiori authorizes the application of state workers' compensation laws to federal facilities, like the Portsmouth plant, that are not federal enclaves. The authorization embodied in Section 290, however, does not necessarily extend to a workers' compensation surcharge of the sort involved here. Although a few states, including Ohio, had such provisions in 1936, when 40 U.S.C. 290 was enacted, /9/ the legislative history of the statute contains no mention of those obviously atypical provisions. The legislative history also shows that Congress did not intend safety laws to apply to federal projects. The House version of the bill that became 40 U.S.C. 290 expressly provided for application to federal projects, not only of workers' compensation laws, but also of state "safety" and "insurance" laws (H.R. Rep. 2656, supra). But the Senate amended the bill "by striking out all provisions subjecting Federal property to State safety and insurance regulations" (S. Rep. 2294, supra, at 2), and the Senate version became the law (80 Cong. Rec. 9180-9181, 9643 (1936)). Accordingly, it is far from clear that 40 U.S.C. 290 authorizes a workers' compensation surcharge provision that indirectly enforces state safety regulations at federal facilities. b. Since 40 U.S.C. 290 does not by itself answer the narrow question presented here, it is necessary to locate the oft-debated and not-always-bright line between presumptively invalid state regulation of the federal government and presumptively valid state regulation of private parties who deal with the federal government. Although direct state regulation of federal facilities must be congressionally authorized, private parties are not immunized from generally applicable state laws simply because they happen to deal with the United States. As this Court has observed (Hancock v. Train, 426 U.S. at 179-180), congressional authorization is not required for all state regulations that "may touch the activities of the Federal Government." See, e.g., Penn Dairies, Inc. v. Pennsylvania Milk Control Comm'n, 318 U.S. 261 (1943); Alabama v. King & Boozer, 314 U.S. 1 (1941). Thus, where a state regulation applies, not to the federal government or to federal property, but to private parties in their dealings with the United States, this Court's decisions, though they do not state a clear rule, generally have undertaken an inquiry into whether the regulation in any way frustrates or impairs federal interests or programs, if only by imposing burdens that hamper progress toward federal goals. E.g., United States v. Georgia Public Service Comm'n, 371 U.S. 285 (1963); Paul v. United States, 371 U.S. 245 (1963); California Public Utilities Comm'n v. United States, 355 U.S. 534 (1958); Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956). Cf. United States v. New Mexico, 455 U.S. 720 (1982) (a nondiscriminatory state tax, absent congressional displacement, is unlawful under the Supremacy Clause only if it is imposed directly on the federal government or its alter ego). Under these principles, Ohio's surcharge provision is in our view quite vulnerable. By exacting a penalty for the violation of safety standards, that provision effectively regulates Goodyear's operation of the Portsmouth plant and its use of federal property for federal purposes. As this Court has pointed out (San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247 (1959)), "regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." See also International Paper Co. v. Ouelette, No. 85-1233 (Jan. 21, 1987), slip op. 16 n.19. /10/ There is accordingly some reason to treat the Ohio provision, though it is an indirect rather than a direct regulation of the use of federal property and the performance of a federal function, as one requiring congressional authorization, concededly absent here. See Hancock v. Train, supra. Even if the principle of Hancock v. Train does not apply, however, strong arguments can be made that the Ohio surcharge provision would frustrate federal objectives, and hence be invalid under the somewhat less demanding standard of Paul v. United States, supra, and the related cases. The surcharge provision could well impair the operation of the Portsmouth facility, which uses classified technology and is essential to the national security, by effectively requiring Goodyear to comply with standards over and above those deemed appropriate by the Department of Energy under its statutory authority. See pages 4-5, supra. Federal interests could also be seriously impaired by the investigations (including on-site inspections, subpoenas of documents, and compulsory attendance of witnesses) authorized by the Ohio workers' compensation statute (Ohio Rev. Code Ann. Sections 4121.13.1, 4121.14-4121.17 (Page 1980)). On the other hand, we think that at least two arguments could reasonably be made in support of the Ohio provision. First, this Court held in Silkwood (464 U.S. at 249-258) that state tort law, including the availability of punitive damages, was not preempted by the Atomic Energy Act. The Court reasoned that Congress, though recognizing an exclusive federal regulatory role over nuclear facilities, intended to preserve state tort law notwithstanding its incidental regulatory effects. Workers' compensation, of course, is traditionally a substitute for state tort law. And while the workers' compensation surcharge involved here is more obviously "regulatory" than the general tort system at issue in Silkwood, since its application is tied exclusively to the violation of a specific state safety standard, the Silkwood analysis may conceivably apply by analogy. In other words, to the extent that the Ohio surcharge provision requires a private party to pay money for injuries it caused, Silkwood might suggest that the provision does not unconstitutionally frustrate the federal program, even as applied to a contractor operating a federal (rather than, as in Silkwood, a privately-owned) facility, any more than the general tort law interfered with the federal government's exclusive regulatory role in the earlier case. Second, the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., though not applicable to the Portsmouth facility because the DOE is exercising its own OSHA-type authority (see page 5, supra), is arguable of some relevance in assessing whether the Ohio workers' compensation surcharge is compatible with exclusive federal regulatory power. The Act provides (29 U.S.C. 653(b)(4)): Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. If the OSHA statute applied here, this savings proviso on its face could conceivably be construed to encompass and thus to preserve the Ohio surcharge provision. See State ex rel. Kroger Co. v. Industrial Commission of Ohio, 62 Ohio St. 2d 4, 402 N.E.2d 528 (1980). The OSHA statute does not apply here, however; and even if the OSHA savings clause were construed to cover the Ohio surcharge provision in other contexts, a different result might well be required where, as here, a federal nuclear facility engaged in activities affecting the national security is concerned. 3. In our view, it is unnecessary for this Court to resolve the difficult and novel issues presented by this case as it stood before the Ohio Supreme Court. Since that court rendered its decision (August 20, 1986), Ohio has changed its workers' compensation law in at least one critically important respect. Effective August 22, 1986, the law requires the Ohio Industrial Commission, upon finding a violation of a safety standard in deciding a claim for a surcharge, to issue an order directing the employer to comply with the safety standard. See Ohio Rev. Code Ann. 4121.47 (Page 1986 Leg. Bulletin No. 3, at 272); Ohio Admin. Code Section 4121-3-20(I) (1986); J.S. App. 46a-48a. /11/ We believe that this new provision, as applied to Goodyear, the employer in this case, would constitute a clearly unlawful (because congressionally unauthorized) direct regulation of the federal nuclear production facility. It is a question of state law whether this new provision would be applied if the case were to return to the Industrial Commission. And contrary to appellee's suggestion (Mot. to Aff. 2, 3), there is a substantial possibility that it would apply. The language of the statute surely admits that construction, since it states that the Commission, upon adjudicating an employer liable for a surcharge, "shall, in addition to any award paid to the claimant, issue an order to correct the violation within such period of time as the Commission fixes" (Ohio Rev. Code Ann. Section 4121.47(B) (Page 1986 Leg. Bulletin No. 3, at 272)). The Commission in this case, of course, has not yet adjudicated a safety violation; and the new statute could well be read to govern its conduct when and if it does so. It is by no means clear that such an application of the new Ohio statute would constitute "retroactive" legislation (see Mot. to Aff. 2), and Ohio law permits "retroactive" application of procedureal or remedial legislation in any event. See French v. Dwiggins, 9 Ohio St. 3d 32, 458 N.E.2d 827 (1984). It would also be a question of state law whether the new provision is severable from the surcharge provision that was before the Ohio Supreme Court when it rendered its decision. See, e.g., Bell v. Maryland, 378 U.S. 286, 238-241 (1964); Dorchy v. Kansas, 264 U.S. 286, 290-291 (1924). If it is not severable, application of the surcharge provision to Goodyear would in our view be unlawful. This Court may well have jurisdiction to decide the state-law questions (see Bell v. Maryland, supra; Dorchy v. Kansas, supra), and the questions may not appear difficult to answer. Nevertheless, we think it inappropriate for the Court to resolve those questions here for reasons in addition to the usual inadvisability of this Court's deciding questions of state law. The Ohio Supreme Court issued a broad and unnecessary ruling of potentially great impact, and its analysis of the narrow issue actually presented for decision was altogether inadequate. In these circumstances, vacating the decision below would remove a flawed decision from the books and, if the case is not settled on remand, would give the Ohio Supreme Court an opportunity not only to consider the effect of the intervening change of state law but also to reconsider its previous analysis. Cf. Webb v. Webb, 451 U.S. 493, 499-500 (1981)(comity supports according state courts a full opportunity to consider objections to state law based on federal law). Accordingly, we think it is appropriate for the Court to follow the course it followed in Bell v. Maryland, 378 U.S. at 237-241, and other cases there discussed, and to vacate the decision below and remand the case to the Ohio Supreme Court. CONCLUSION The judgment of the Ohio Supreme Court should be vacated and the case remanded to that court for further consideration. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General ALBERT G. LAUBER, JR. Deputy Solicitor General RICHARD G. TARANTO Assistant to the Solicitor General LEONARD SCHAITMAN JEFFREY CLAIR Attorneys JUNE 1987 /1/ For the sake of simplicity, we will refer to the Atomic Energy Commission and the Nuclear Regulatory Commission as the Commission. /2/ "Special nuclear material" is material capable of sustaining a chain reaction, including plutonium and enriched uranium 233 and 235 (42 U.S.C. 2014(aa)). "Source material" is material from which the special nuclear materials are derived, including uranium, thorium, and their ores (42 U.S.C. 2014(z)). "Byproduct material" includes radioactive material "yielded in or made radioactive by * * * utilizing special nuclear material" (42 U.S.C. 2014(e)). /3/ The responsibility for regulating licensees and for operating government facilities was originally unified in the Atomic Energy Commission. Jurisdiction is now divided, with the Department of Energy (DOE) responsible for the principal operational activities of the federal government and not subject to licensing requirements (42 U.S.C. 2014(s)), and the Nuclear Regulatory Commission responsible for licensing and the regulation of licensees (42 U.S.C. 2201(i), 2201 note on Transfer of Functions, 5814, 5841(f); see S. Rep. 93-980, 93d Cong., 2d Sess. 82-85 (1974). /4/ The Department's non-radiological health and safety standards largely adopt and incorporate by reference standards developed by the Occupational Safety and Health Administration (OSHA). See DOE Order 5483.1A, at I-1. OSHA standards do not apply of their own force, since the OSHA statute excludes coverage of "employees with respect to which other Federal agencies * * * exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health" (29 U.S.C. 653(b)(1)). The Secretary of Labor has recognized that this exception applies to government-owned, contractor-operated facilities now under the jurisdiction of the Department of Energy (J.S. App. 53a-80a). /5/ The federal government has initiated a related action in the United States District Court for the Southern District of Ohio, United States v. Industrial Commission of Ohio, No. C2-85-1852. That action seeks an injunction against application of Ohio safety standards to DOE nuclear facilities. Cross-motions for summary judgment are pending, and the district court is holding the case in abeyance pending final disposition of the instant case. /6/ The case is properly before this Court on appeal under 28 U.S.C. 1257(2). The Ohio Supreme Court upheld the application of the state workers' compensation surcharge provision against the contention that such application was unconstitutional under the Supermacy Clause. See Rose v. Rose, No. 85-1206 (May 18, 1987), slip op. 4 n.3; McCarty v. McCarty, 453 U.S. 210, 219 n.12 (1981); R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice 112-113 (6th ed. 1986). We also think the judgment below is final, even though further proceedings before the Ohio Industrial Commission are contemplated, because the case falls within either the first or fourth category set forth in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 479, 482-483 (1975). As far as we can tell, the federal issue has been finally decided by the Ohio Supreme Court, there is no real doubt about the result that would be reached by the Industrial Commission, reversal by this Court would preclude further proceedings, and a serious erosion of federal policies is alleged. /7/ See Silkwood, 464 U.S. at 250-251; Pacific Gas & Electric Co.; Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1111 (3d Cir. 1985), cert. denied, No. 85-959 (Feb. 25, 1986); County of Suffolk v. Long Island Lighting Co., 728 F.2d 52, 58 (2d Cir. 1984). /8/ Contrary to the statement of the Ohio Court of Appeals (J.S. App. 13a), 42 U.S.C. 2021(k) does not support the notion that Congress has authorized state regulation of safety at federal production facilities. Section 2021 is the statute that authorizes the Commission to sign cooperation agreements permitting states to regulate certain licensed nuclear facilities. See pages 3-4, supra. Section 2021(k) says that "(n)othing in this (S)ection shall be construed to affect the authority of any State or local government to regulate activities for purposes other than protection against radiation hazards." As this Court has pointed out, Section 2021(k) "does not represent an affirmative grant of power to the states." Pacific Gas & Electric Co., 461 U.S. at 210. /9/ By the end of 1936, seven states apparently had statutes providing for workers' compensation surcharges based on violations of safety regulations or failure to provide required safety devices. See 2A A. Larson, The Law of Workmen's Compensation Section 69.10, at 13-107 to 13-111 (1983). For the current versions of these statutes, see Ky. Rev. Stat. Ann. Section 342.165 (Michie 1983 repl.); Mo. Ann. Stat. Section 287.120(4) (Vernon 1965); N.M. Stat. Ann. Section 52-1-10 (1978); N.C. Gen. Stat. Section 97-12 (Michie 1979 repl.); Ohio Const. Art. II, Section 35; S.C. Code Ann. Section 42-9-70 (Law. Co-op. 1985); Wis. Stat. Ann. Section 102.57 (West 1973). /10/ The Ohio courts' characterization of the workers' compensation surchage as compensatory rather than penal (see Mot. to Aff. 5-7) does not alter the regulatory effect of the law and does not control the constitutional analysis. /11/ The law as amended also requires assessment of a monetary penalty against any employer that is found to have committed two safety violations in a 24-month period. See Ohio Rev. Code Ann. Section 4121.47 (Page 1986 Leg. Bulletin No. 3, at 272); Ohio Admin. Code Section 4121-3-20(K)(3) (1986); J.S. App. 49a-51a.