Monday, December 19, 2005

OSHA "Guidance" Sows Confusion

As you've read here and in almost every paper in the United States, workers cleaning up New Orleans and the Gulf area are exposed to a large number of hazards. Many of these are "traditional" -- falls, electrocutions, power tools, confined spaces, slips & trips. But others are "new," not clearly identified and not covered by any specific OSHA standards: mold, toxic dust (impregnated with chemical wastes) and chemical spills of unknown origin. In other words, it's a toxic mess down there.

Luckily, one might think, OSHA has the perfect standard: the Hazardous Waste Operations and Emergency Response or "HAZWOPER" standard (29 CFR 1910.120 and 1926.65), which covers workers working at hazardous waste sites or workers engaged in "emergency response" to emergencies involving hazardous substances. Although the standard was originally intended to address Superfund cleanups and chemical emergency responses, it sounds like a perfect fit for Katrina workers, right?

Not so fast. Coverage under OSHA standards is much more complicated than you think. So, to clear things up, OSHA has helpfully issued guidance
that is intended to clarify and explain "the conditions in which a response or cleanup activity may fall under the requirements of HAZWOPER."

Sounds good.

Not so fast. I used to work at OSHA, plus I've been in this field going on 25 years -- interpreting OSHA standards,
writing OSHA standards, writing fact sheets about OSHA standards -- so you'd think I'd understand what this guidance was saying.

I didn't. So I hung back for a few days, waiting for journalists or some of my colleagues to explain it to me.

They couldn't.

The good news is that I'm not crazy. The bad news is that OSHA is.

For example, on one hand, according to this "guidance":
When the following conditions, or similar conditions, may develop as a consequence of a release of hazardous substances or threat of release, such situations would be considered emergency situations requiring an emergency response effort:
  • High concentrations of toxic substances.
  • Immediately Dangerous to Life and Health (IDLH) environments.
  • Situations that present an oxygen deficient atmosphere.
  • Conditions that pose a fire or explosion hazard.
  • Situations that require an evacuation of the area.
  • Situations that require immediate attention because of the danger posed to employees in the area.
On the other hand:
The HAZWOPER standard does not cover the inevitable release of a hazardous substance that is limited in quantity, exposure potential, or toxicity, and poses no emergency or significant threat to the safety and health of employees in the immediate vicinity or to the employee cleaning it up. These incidental releases also do not have the potential to become emergencies within a short time frame.
You're covered under HAZWOPER's emergency response section if your response involves a hazardous substance. Sounds easy? That would include mold, contaminated soil and other icky looking stuff. Right?

Not exactly:
Hazardous substance means any substance designated or listed under (A) through (d) of this definition, exposure to which results or may result in adverse effects on the health or safety of employees.

[A] Any substance defined under section 101(14) of CERCLA.
[B] Any biologic agent and other disease causing agent which after release into the environment and upon exposure., ingestion, inhalation, or assimilation into any person, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunction in reproduction) or physical deformation in such person or their offspring.
[C] Any substance listed by the U.S. Department of Transportation as hazardous materials under 49 CFT 172.101 and appendices; and
[D] Hazardous waste as herein defined. Hazardous waste means --
[A] A waste or combination of wastes as defined in 40 CFR 261.3, or
[B] Those substances defined as hazardous wastes in 49 CFR 171.8.
And if you're not confused now, check out the charts in the document.

Now, it's possible, (although I doubt it) that this might mean something to an OSHA inspector or attorney in the context of what's going on in the Gulf, but this was released as a document that
will assist workers and employers in determining whether an activity is, or would be considered, an "emergency response" activity under OSHA's Hazardous Waste Operations and Emergency Response (HAZWOPER) standard.
Fat chance.

This is a perfect example of a document that should not be written by attorneys or by Public Affairs people in Washington D.C. It should be written -- or at least tested -- by those in the field, perhaps even by some real employers or workers.

And, although I hate to beat a dead horse (although as someone recently told me, sometimes there's no horse too dead for me to keep beating it), this is also an example of what happens when a government agency that is supposed to address the concerns of workers never talks to any real workers.

The sign outside says "Department of Labor" -- but that's apparently just for show.

Update for Government bashers: This is not an inherent problem of government. Some agencies actually manage to put out materials that are helpful and understandable. Check out the NIEHS Katrina site for example. Now check out OSHA's materials.