Does a Collateral Duty Require Less Protection

Does a Collateral Duty Require Less Protection: Workers, Hazardous Materials Emergency Response, and OSHA’s Failure to Protect
BY CRAIG SLATIN AND EDUARDO SIQUEIRA

Trash Collector Dies after Inhaling Discarded Acid
By Lawrence Van Gelder, New York Times, November 13, 1996

New York -- A city worker died Tuesday after he inhaled the fumes of a corrosive acid from a discarded container that burst under the compacting blades of a garbage truck making routine collections in Brooklyn. Fire Department hazardous materials experts identified the substance as hydrofluoric acid, often used to etch glass. A second sanitation worker was injured in the incident, which brought the Mayor and Sanitation Commissioner rushing to the burn unit of New York Hospital-Cornell Medical Center, touched off an investigation by police and sanitation departments and raised the possibility of homicide charges against those responsible for leaving the acid to be picked up. The source of acid was not known Tuesday night.

... The dead man was identified as Michael Hanly, 49, of Brooklyn, a Sanitation Department worker for 22 years. His injured partner, who suffered burns on the face and hands when he came to Hanly’s aid, was identified as Thomas Giammarino, a member of the Department for 15 years ...

This incident presents an example of the health and safety risks resulting from exposures to hazardous waste by workers engaged in waste management activities. Comprehensive health and safety programs, which address these risks can be implemented as part of efforts to prevent fatalities and injuries resulting from exposure to hazardous wastes [1]. To be effective, such programs should address the potential for exposure to hazardous waste materials even though a particular set of tasks does not primarily place workers in contact with hazardous wastes. For many workers, like these sanitation workers, addressing and responding to a hazardous materials emergency incident is a likely "collateral duty." That is, although they have not been hired as hazardous waste operations workers, a potential for exposure to hazardous waste materials exists in the nature of their work. This potential should be considered a part of the job for most workers engaged in waste management activities.

Waste management activities are widespread throughout most industrial sectors, and hazardous materials are a component of the waste of almost every aspect of industry -- from manufacturing and processing to health care and education. Workers with a collateral duty to manage hazardous waste, regardless of the industrial sector, require health and safety protection provisions that include measures for an emergency response to a hazardous materials incident (spill, release, explosion, combustion, and so forth). Unfortunately, OSHA has failed to appropriately acknowledge this threat to workers and has been confusing and inconsistent in the interpretation and enforcement of its regulatory requirement for training workers with such a collateral duty.

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OSHA’S HAZWOPER STANDARD, 29 CFR, 1910.120

The Superfund Amendments and Reauthorization Act (SARA) of 1986, Section 126, mandated that the Occupational Safety and Health Administration (OSHA) and the U.S. Environmental Protection Agency (EPA) regulate health and safety protection of hazardous waste operations and hazardous materials emergency response workers. The regulation was to include mandatory health and safety training [2]. The resulting regulatory standard, 29 CFR, 1910.120 (and 40 CFR, Part 311 -- so that all public workers left unprotected by OSHA would be protected by a corresponding EPA standard) established, among other training requirements, training for workers who would be engaged in any of certain levels of hazardous materials emergency response [3]. The levels were based upon those established and made standard by the National Fire Protection Association (NFPA). The NFPA levels of response actions were; First Responder Awareness, First Responder Operations, Technician, Specialist, and Incident Commander [4].

OSHA has established training requirements for each level of hazardous materials emergency response work. A mandatory number of training hours was established for all but the Awareness Level training. The number of hours of training is not wholly clear as stated in the standard, and usually does not allow time to address all of the mandated topics. However, the standard’s training requirements (for emergency responders and hazardous waste operations workers) represent the most comprehensive training mandate from OSHA for any industrial processes [5].

Between 1989 and 1993, OSHA personnel from all regions of the country provided numerous responses to employer inquiries regarding which workers should receive some level of emergency response training. By 1993, OSHA published these responses as Quips to 29 CFR, 1910.120 [6]. Following is a discussion of the agency’s responses regarding training for Awareness Level Emergency Response workers.

In the Quips, OSHA defined First Responders at the Awareness Level as: " ... those individuals who are likely to witness or discover releases of a hazardous substance and who have been trained, and whose duty it is, to initiate an emergency response sequence by notifying the proper authorities of the release." [7]

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In the New York City case described above, this scenario is applicable to Thomas Giammarino, the worker who got burned when he tried to help Michael Hanly. After the spill happened, he was the "first-on-the-scene" of the incident and might have been better able to avoid injury had he been properly trained. The Awareness Level training curriculum mandated by OSHA covers what to do in case of incidental releases of unknown hazardous chemicals.

The Quips also state that: "In applying OSHA’s standard it is important to look at the statutory purpose, which is to protect workers. The training requirements of both the Hazard Communication standard, 29 CFR 1910.1200 (HAZCOM) and the Hazardous Waste Operations and Emergency Response standard must be applied in a way which will provide meaningful and adequate training to the workers to ensure their safety. More employees are likely to be covered by the training requirements of HAZCOM than the training requirements for First Responders under 29 CFR 1910.120. However, it is important that the population of adequately trained First Responders be large enough to provide the necessary protection in the event of an emergency." [8] (Emphasis added.)

We believe that this interpretation suffices to justify the training of public-sector waste management workers at the Awareness Level in order to prevent many injuries and even deaths, such as the one in New York. The Awareness Level training curriculum mandated by OSHA includes identifying and recognizing the potential hazards of dealing with unlabeled hazardous materials containers. Nonetheless, OSHA has refused to establish this as agency policy and instead leaves interpretation to the employer rather than clearly mandating worker protection [9].

We believe that OSHA has failed to extend its protection to workers who face a potential set of exposures that, as in the case of the New York City sanitation workers, can result not only in serious injury but also in death. This is a callous and irresponsible act on the part of OSHA. The agency itself has told employers that they need to provide adequate training, even though they won’t commit themselves to a clear definition of the workers to be trained. Undoubtedly, the agency finds itself too politically vulnerable to state that employers in most sectors of industry, including the service sector, have a responsibility to provide emergency response health and safety training to a vastly expanded set of workers from that which is currently defined. Nonetheless, political vulnerability is no excuse for blatant underprotection that can lead to a worker’s death. Above all else, OSHA is a public health agency and has an obligation to prevent injury, illness, and death [10].

OSHA should revise Appendix (e) and make its interpretation and enforcement of the standard consistent so that collateral duty emergency response workers are protected by the standard.

ACKNOWLEDGEMENTS
The research involved in developing this paper was partially supported by NIH/NIEHS grant # U45 ESO7823-0. Call TNEC at 1-978-934-3197 for the references for this article.

(This article originally ran in the Fall 1998 edition of the TNEC Quarterly (Vol.9, No.3). It was excerpted from a longer version that appeared in New Solutions, June 1998, copyright Baywood Publishing Co. We chose to reprint it here because workers with collateral duty responsibilities are being asked and/or expected to assume many new risks and additional job functions in the face of new threats and unexpected incidents.The issues raised here are even more important now.)

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