Harvey: What Will OSHA Do?

The rain finally seems to be stopping in Texas, but the struggles there are just beginning as the huge job of clean-up and repair begin.  OSHA has a little known, but crucial and life-saving role protecting recovery workers after major hurricanes and floods. The goal: Protect the safety of response and recovery workers. Don’t create any more victims. The safe recovery from the devastating damage and catastrophic flooding caused by Hurricane Harvey will produce OSHA’s first big test under the Trump administration.

We will be covering this story over the next several months, but right now I’m going to review some of the things that OSHA leadership is thinking about and what to watch out for in the coming weeks and months.

Background

Hurricane recovery work comes with a wide variety of safety and health hazards. Repairing roofs, cleaning out flooded homes and basements, demolishing structures, repairing electrical lines, bringing down damaged trees, water contaminated by waste or chemicals, carbon monoxide and electrical hazards from portable generators — all can result in a number of hazards. The hazards are serious, many life threatening: falls, drowning, electrocution, crushing, confined space hazards, exposure to chemicals and human or animal wastes, musculoskeletal injuries, being struck by traffic or heavy equipment, and many many more.

OSHA’s Goal: Protect the safety of response and recovery workers. Don’t create any more victims. 

While some of the work will be done by skilled workers who have the training and equipment to do the job safely, thousands of day laborers and anyone else looking for a job will be enlisted by companies and homeowners into the recovery process.  Added to this, many of the workers in that area are likely to be undocumented immigrants who may be reluctant to complain about unsafe conditions or seek help from a government agency like OSHA.

In addition to hazards faced by individual workers, the Houston area has the nation’s largest concentration of refinery and chemical plants — produces more than 25 percent of the nation’s gasoline. Refineries and chemical facilities in Harvey’s path were shut down as the hurricane approached.  After the storm passes, they will be started up again, and as the Chemical Safety Board warns in a press release that “The startup of major processes at chemical facilities is a hazardous phase and facilities should pay particular attention to process safety requirements during this critical period to assure a safe and expeditious return to normal operations.”  The CSB also issued an alert on “Precautions Needed During Oil and Chemical Facility Startup.

In addition to the huge refineries and chemical plants, the area is full of smaller tank farms and chemical waste disposal facilities that hold large amounts of hazardous chemicals that can lead in storms and floods. We’ve already started to see reports of chemical facilities at risk of explosion, as well as leaks and spills coming from refineries and chemical facilities.

Resources and Federal Assistance

Protecting the thousands of workers in such a wide geographic area is costly for the agency.  Life and work will go on as normal in the rest of OSHA Region VI, so a catastrophe like Harvey requires OSHA to temporarily transfer enforcement and compliance assistance staff into the affected area. Paying for hotels, travel, per diem, etc. is expensive for an agency already strapped for resources to conduct its normal business. Additional materials have to be printed, meetings are held, training is conducted. In addition, taking enforcement and compliance assistance staff from other understaffed areas around the country leaves OSHA offices even more understaffed, leaving workers there more vulnerable.

There is a complicated mechanism for reimbursement of some expenses from the Federal Emergency Management Administration (FEMA), under the National Response Framework Worker Safety and Health Support Annex which may provide supplemental assistance  “to support and facilitate the protection of response and recovery worker safety and health during an incident requiring a coordinated Federal response.”  In order for OSHA to receive significant funding from FEMA, the affected state must request OSHA’s assistance and contribute 25% of the funding.  FEMA can waive that requirement, but did not do so during Sandy. And what are the odds that the governor of Texas, not known to be too friendly to OSHA or regulatory agencies in general, is going to pony up money to get more OSHA presence in his state? I’m willing to be pleasantly surprised.

Enforcement vs. Compliance Assistance

At the beginning of a national disaster — hurricane, massive oil spill or terrorist attack — OSHA goes into “compliance assistance mode.”  With multiple agencies attempting to bring order to chaos, with thousands of hazardous worksites everywhere you look, it makes much more sense for OSHA spend its time providing information to employers and workers on hazard recognition and how to reduce or eliminate hazards, as well as what personal protective equipment to use, workers’ rights, etc. After a few weeks, when things start calming down, OSHA has the opportunity to move into enforcement mode. This transition from compliance assistance mode to enforcement is often controversial. After 9/11, OSHA never moved into enforcement mode and never enforced the use of respirators for workers exposed to the toxic dust. Many workers later became sick and died from 9/11 dust-related illness.  During recovery from Hurricane Katrina, OSHA was also reluctant to enforce the law and issue citations, even where workers were knowingly endangered well after the immediate emergency had passed.

After Hurricane Sandy, OSHA again started out in compliance assistance mode: holding workshops to remind employers that they were responsible for assessing their workplaces for hazards, training workers, and providing employees with information about what personal protective equipment to use and how to use it appropriately. OSHA staff also handed out donated personal protective equipment, fact sheets and other information.  Within two months of Sandy hitting the East Coast, OSHA had conducted more than 4,400 briefings and other outreach activities, reaching nearly 61,000 workers and employers performing recovery work in Sandy-impacted areas.

But as life started returning to normal, OSHA also began issuing citations to employers who had been warned about unsafe conditions their workers were exposed to, but had repeatedly failed to take measures to protect those workers. For example, where OSHA found workers on top of a building with no fall protection, OSHA would first attempt to educate the employer about the need for fall protection. But when OSHA repeatedly found that those workers were not being provided with fall protection, the agency would issue a citation.

Susan Harwood Grants and NIEHS Worker Training Program

The extent of damage caused in 2012 by Hurricane Sandy took the country by surprise.   OSHA quickly mobilized resources which were supplemented by a number of non-profit groups in the area that were ready to hit the ground running because they had trained a large number of workers in programs funded by training grants from OSHA’s Susan Harwood Training Grant program, as well as the Worker Training Program funded by the National Institute for Environmental Health Sciences.  These organizations already had deep ties with the day laborers, small employers and union members who would be conducting much of the recovery work.  Many of these workers, who may pick up jobs on the street corner, are hard for OSHA to reach, making these organizations especially valuable.

For example, the National Day Laborer Organizing Network monitored the recovery to make sure workers were treated fairly and not exposed to hazardous conditions without protection, and conducted training for day laborers and volunteers, many of them immigrants,  who worked to repair houses and remove debris.   Make the Road New York (MRNY)  was well equipped to respond to the immediate occupational health and safety needs of immigrant and Latino low wage workers in the aftermath of Hurricane Sandy. In October 2012, MRNY trained workers on construction hazards at Sandy-affected sites and provided them with personal protective equipment. MRNY credits OSHA for its ability to train workers on occupational health and safety. Using Susan Harwood grant funds, the organization was able to certify close to 650 low wage immigrant workers to perform recovery work safely.

Congress later provided $5 million in supplemental funding to the Harwood program to provide grants for organizations to address Hurricane Sandy workplace hazards.

The NIEHS worker training program has also developed a number of resources and trained workers in unions and non-profit organizations to respond to hurricanes and other emergencies. During Hurricane Sandy, the agency helped create public awareness of health and safety issues, and conducted more advanced training for  nearly 14,000 response and recovery workers in New York and New Jersey.

The New York Times published an editorial describing the work that these workers, many of them volunteers did, and “the warmth and gratitude they found,” and “An OSHA official didn’t let her lack of Spanish stop her from urging everyone to use gloves and face masks — “mucho importanto,” she said.”

Happily, the Houston area has a COSH group, the Workplace Justice Program (Fe y Justicia) that has also received Harwood funds, as has the Workers Defense Project in Austin.

The Trump administration has proposed eliminating the Harwood program.

National Office After Harvey

Disasters such as Hurricane Harvey have the potential to consume enormous amounts of time and energy in OSHA’s national office, particularly the Assistant Secretary’s office. Managing worker safety and health during a national disaster to exhausting, especially now when OSHA is still lacking an Assistant Secretary.  All of the extra work and late-night hours come on top of the all-consuming normal day-to-day demand of running the agency. Figuring out the logistics of moving resources to Texas,  negotiating program and reimbursement with FEMA and the White House, dealing with press inquiries, figuring out when to move from compliance assistance to enforcement are enough to swamp the agency. The Obama administration was lucky that our only major hurricane came in the summer of 2012, more than three years after the start of the administration, and after we had been battle-tested during the Deepwater Horizon disaster.

OSHA’s Directorate of Technical Support and  Emergency Management has an Office of Emergency Management and Preparedness with an very competent — and over-worked — staff experienced in helping OSHA steer through national emergencies, from hurricanes to oil spills to infectious disease pandemics like H1N1 Influenza and Ebola.  Each region is also budgeted for at least one Emergency Response Coordinator, although it’s unclear whether all of these positions have been filled since the beginning of this administration.

Other Federal Agencies

Several other agencies, in addition to OSHA, have responsibility for protecting worker health during hurricanes

Chemical Safety Board: The CSB is an independent federal agency charged with investigating industrial chemical accidents.  As mentioned above, the CSB issued an Alert, warning refineries and chemical facilities of the hazards of restarting operations after a shut down. Althouth the CSB has no enforcement authority, the agency would be expected to investigate any major incidents caused by the hurricane, flooding or its aftermath.

Environmental Protection Agency:  EPA has the authority to enforce procedures to prevent chemical plant incidents that may affect communities, as well as any chemical leaks that may affect the environment. The agency should be closely monitoring the safety of chemical plants and refineries, and any other facility with the potential of contaminating, land, air or water of the communities in the affected area. In addition,  EPA’s Superfund law gives EPA authority under  Part 311 to enforce OSHA’s Hazardous Waste and Emergency Operations (HAZWOPER) standard for public employees in states, like Texas, where public employees are not covered by OSHA.  HAZWOPER requires some employers to prepare an emergency response plan, employee training, medical monitoring of employees, recordkeeping, and other issues. This would come into effect in the even of any chemical spills related to the hurricane.

What to look for:

• Does OSHA have the resources and funding to adequately ensure worker protection in the affected areas?
• How successful will OSHA be in getting supplemental funding from FEMA?
• When will OSHA decide to start moving from compliance assistance mode to enforcement mode?
• Will OSHA, EPA or the CSB provide pro-active support and oversight of chemical facilities as they restart?
• Will the Trump administration decide that Harwood Grants are important in situations like this?
• Will EPA enforce OSHA’s HAZWOPER standard for Texas public employees who are involved in the hurricane response?

Worker Protection Resources

Agencies below provide materials that will help protect workers doing hurricane response and recovery work

OSHA: Hurricane and Flood Response Materials, including a “Hurricane Sandy Cleanup PPE Matrix” that listed the personal protective equipment needed for every potentially hazardous task.

NIEHS Hurricane and Flood Materials

Environmental Protection Agency

National Institute for Occupational Safety and Health

Conclusion

This will be an extremely challenging period the Houston area as it attempts to recover from Harvey. OSHA has a crucial role in protecting the people who will be rebuilding the city.  After Sandy, with OSHA’s help, the community came together to perform the needed work effectively and safely. Ad the NY Times editorial noted: “An observer used to the anti-Latino screeds of politicians on Long Island, a few miles east, marveled at the sense of community — the feeling that after a disaster, immigration status didn’t matter, only a willingness to help. A few more people gave little speeches and then it was time to get to work.”

We can hope.