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Labor, Business Leaders Differ on OSHA’s Role to Protect Hurricane Cleanup Workers

Wednesday, November 7, 2012

Labor and business representatives are split on the role the Occupational Safety and Health Administration should take in enforcing regulations during the Hurricane Sandy cleanup effort.

The division arises over the question of whether OSHA should provide a muscular response to a highly hazardous environment, or whether it should play an advisory and support role while cleanup workers in hard-hit communities in New York, New Jersey, and Connecticut attend to imminent concerns.

Peg Seminario, safety and health director with the AFL-CIO, said OSHA should make it clear what it expects of employers involved in the cleanup and that companies not adequately protecting workers will face serious consequences. However, employer representatives told BNA the agency should modify its enforcement approach and use enforcement discretion as companies respond to emergency situations.

Concerns Over Electrical, Toxic Hazards

In an Oct. 30 bulletin, OSHA said recovery workers are likely to encounter electrical, demolition, and structural hazards and may be exposed to contaminated water and food from flooding throughout the affected area, especially lower Manhattan and coastal New Jersey.

The New York Committee for Occupational Safety and Health, a labor group, said Nov. 5 it was especially concerned about cleanup of areas where overflows containing both stormwater and sewage is likely, such as the Gowanus Canal and Newtown Creek Superfund site, both in Brooklyn, because of the health threats posed by raw sewage and contaminants in the stormwater.

Only workers with special training should participate in the cleanup of Gowanus Canal and Newtown Creek, said Joel Shufro, NYCOSH's executive director.

Other workers will face dangers as they trim trees, repair natural gas leaks, shore up falling structures, use cranes and aerial lifts, and drive through flooded streets, according to OSHA.

AFL-CIO Calls for Muscular Response

To Seminario, “the last thing we need coming from this devastation is more devastation, more lives lost. That has to be first and foremost in terms of protecting the safety and health of workers. And it would be a tragedy to repeat some of the same mistakes that we saw at the World Trade Center, where workers were not provided with the kind of protection that was needed.”

Seminario was referring to the Bush administration's handling of the Sept. 11, 2001, terrorist attacks. Many safety advocates say first responders in the recovery effort were not adequately protected from cancer-causing dusts and toxins (42 OSHR 816, 9/13/12).

“Definitely [OSHA] needs to be directly involved, clearly involved,” Seminario said. “They have to be very clear about what is needed to protect workers, that the expectations are there, and that employers will be taking those steps that are needed. If they don't, there will be consequences.”

OSHA's Enforcement Role Questioned

Others have called for OSHA to modify its tough enforcement approach, at least in the immediate aftermath of the storm.

“OSHA will be most helpful in this moment if they look upon their role as helping people understand what's required and giving them clear direction, rather than trying to come in and enforce regulations on employers who are just trying to get things done,” Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, told BNA Nov. 1.

“You have to take a balanced approach to be there to encourage the use of personal protective equipment, provide training,” a safety association representative who declined to be identified told BNA Nov. 2.

“Hitting people over the head with citations is pretty unrealistic and counterproductive, except in the most outrageous cases,” the association representative said. “A key must be building relationships with other agencies more directly involved in responding, helping out with their knowledge of risks and protections. The greater challenge may be long-term, in finding a way to oversee the contractors who show up en masse with unskilled workers who often can't speak English in the aftermath.”

Obama's Mandate an Issue?

President Obama may have stoked the debate Oct. 30, when in a speech at the American Red Cross headquarters he ordered federal agencies to act swiftly.

Obama said his instructions have been, “Do not figure out why we can't do something. I want you to figure out how we do something. I want you to cut through red tape. I want you to cut through bureaucracy. There's no excuse for inaction at this point. I want every agency to lean forward and to make sure that we are getting the resources where they're needed as quickly as possible.”

A White House aide told BNA Nov. 4 that the president “was making clear that agencies should identify and remove any barriers that could slow the deployment of vital resources.”

OSHA did not respond to questions about how specifically the agency will respond to the hurricane, although the agency issued a notice Nov. 1 saying its field staffers were in the affected region, providing assistance and support to recovery workers.

Seminario rejected the notion that Obama intended for OSHA to lower its guard.

“He was not talking about putting people in harm's way,” Seminario told BNA Nov. 2. “Yes, [OSHA] has to be thoughtful and deliberate, but they also have to be clear about what [employers'] obligations are.”

BP Cleanup a Positive Example

Eric Frumin, health and safety director for Change to Win, pointed to the Obama administration's response to the 2010 BP Deepwater Horizon cleanup in the Gulf of Mexico as a model of how OSHA can protect workers even in emergencies.

In that instance, labor leaders broadly praised OSHA for consistently monitoring the air for toxins, enforcing the use of respirators, and offering a strong physical presence along the shore (41 OSHR 464, 5/26/11).

“If I thought that this administration's approach to protecting workers was the same as the Bush administration's after 9/11, I would worry,” Frumin said Oct. 31. “But we have the counter example of the BP situation to demonstrate that oversight is possible.”

Frumin noted that the construction, utility, and transportation workers who will have been pressed into duty in the Hurricane Sandy cleanup face serious dangers even under ordinary circumstances.

Agency Issues Guidance

Employers involved in the hurricane recovery effort should take measures including evaluating hazards, monitoring task-specific hazard exposures, using engineering or work practice controls, providing personal protective equipment, ensuring proper hygiene, and seeing that portable generators and other equipment is used properly and precautions are taken traffic work zones, OSHA said Oct. 30.

“Recovery work should not put you in the recovery room,” Marthe Kent, OSHA's New England regional administrator, said in a Oct. 30 statement. “Storm recovery work involves a wide range of safety and health hazards, which can be minimized by knowledge, safe work practices, and personal protective equipment. OSHA wants to make certain that no casualties result from cleanup operations.”

State and local government employees in New York, New Jersey, and Connecticut all receive OSHA protection under special public sector-only state plans. Government workers in non-state plan states are not covered by OSHA. Private-sector workers in all three states are covered by federal OSHA.

Labor Representative Fears Abuse

Frumin also expressed concern that salvage and cleanup workers may be abused by their employers because many of them are likely to be low-paid, may not speak English, and may not understand their rights.

“I fear that we're going to go down that road again, because there's a wide open, winner-take-all, Darwinian approach to oversight of that workforce,” Frumin told BNA Oct. 31. “We could see people badly abused. I can't imagine what OSHA's ability to protect them will be, but hopefully the powers that be who are on the one hand complimenting the dedication of the workers and utilities will think that the cleanup workers will deserve the same kind of action.”

Vulnerable workers deserve robust protection, “whether they were born and brought up in Queens or whether they arrived in Queens from Mexico two weeks ago,” Frumin said.

“Previous emergency events such as [the] World Trade Center, Hurricane Katrina and Deepwater Horizon have demonstrated that there are significant gaps in responding to emergency worker and volunteer health and safety needs, resulting in tens of thousands of rescue and clean up workers becoming ill,” said John Durso, president of the Long Island Federation of Labor, in a Nov. 5 statement.

By Stephen Lee  


A transcript of President Obama's Oct. 30 remarks is available at http://www.whitehouse.gov/the-press-office/2012/10/30/remarks-president-american-red-cross.

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