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. This article will discuss efforts on a national level to secure these protections and provide an example of a union’s training program for workers with such a collateral duty.

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]

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].

The American Federation of State, County and Municipal Employees International Union (AFSCME), which represents thousands of sanitation workers, stated the need for this protection in 1995 when it applied for the National Institute of Environmental Health Sciences (NIEHS) Hazardous Waste and Emergency Response Workers training grant. In the section titled “Sanitation and Landfill Employees,” AFSCME argued that “ ... sanitation workers are routinely exposed to hazardous materials when they are illegally dumped, end up in trash compactors, are crushed by the apparatus and then spill onto streets and alleys ... ” [10] The union also claimed that untrained sanitation workers are asked to clean up spills without protective equipment and decontamination procedures in place. In a number of cases, cities have neither standard operating procedures nor emergency response plans to deal with incidental releases. AFSCME asserted that the First Responder Awareness Level health and safety training combined with correct, specific workplace practices and operating procedures can prevent deaths of public workers. (A discussion of AFSCME’s training program is provided later in this article.)

NIEHS’ INTERPRETATION OF REQUIREMENTS

The NIEHS Superfund Worker Training (SWT) Program developed Minimum Criteria for Worker Health and Safety Training for Hazardous Waste Operations and Emergency Response. The minimum criteria were developed through a consensus process which was called for by the NIEHS program awardees. They believed that criteria were needed as guidance for training providers as well as other federal and state government agencies. A planning committee developed a draft discussion document in advance of the workshop. The draft was circulated to the NIEHS program grantees, external experts, and several federal agency representatives. 

The draft was used as the basis for discussion and development of a final document at a Technical Workshop in March 1990. The workshop was attended by representatives from the NIEHS-funded health and safety training organizations, private industry, government agencies, and national consensus organizations. After the workshop, a draft report was sent to all workshop participants for review and comment. The final Minimum Criteria document was issued in April 1990.

The purpose of the process was to identify, evaluate, discuss, and make recommendations on training quality issues in the area of hazardous waste operations/hazardous chemical emergency response operations. Some hoped that the document would be useful to OSHA in its efforts to establish guidelines for its proposed standard, 29 CFR, 1910.121, Accreditation of Hazardous Waste Worker Health and Safety Training Programs. By 1993, it became apparent that the standard would not be finalized. Therefore, the NIEHS SWT program decided to initiate a process to develop interpretive guidance to its Minimum Criteria document to increase its usefulness to training organizations.

NIEHS established a planning committee of representatives from awardees of the SWT program. Subcommittees were formed to develop draft interpretive guidance documents for each category of the OSHA HAZWOPER standard, 29 CFR, 1910.120. They included hazardous waste sites, Resource Conservation and Recovery Act (RCRA)-regulated Treatment, Storage and Disposal (TSD) facilities, and hazardous materials emergency response. In addition, interpretive guidance was drafted for the general training criteria of the document. 

The draft interpretive guidance documents were distributed to all of the NIEHS SWT awardees, as well as interested parties at government agencies such as the National Institute of Occupational Safety and Health (NIOSH), OSHA, the Department of Energy, and the EPA. They also were distributed to interested representatives from private industry, state and local emergency response organizations, and related consensus and non-profit organizations.

In March 1994, more than 70 persons representing many of these organizations and institutions participated in an NIEHS-sponsored technical workshop to critique the draft guidance documents and develop consensus regarding final documents. This was accomplished and a final set of interpretive guidance to the NIEHS Minimum Criteria document was issued. OSHA used significant portions of the Minimum Criteria document and the interpretive guidance in its development of the non-mandatory Appendix E to the HAZWOPER standard. However, OSHA chose not to include important language supporting workers with a collateral duty to respond to hazardous materials incidents.

HAZMAT ER JOB CATEGORIES

During the discussions of health and safety training criteria for workers who will engage in emergency response activities to hazardous materials incidents, two basic groups of workers who are responsible for this type of emergency response were identified:  1. †collateral duty emergency response workers, and, 2. public and facility (off-site, full-time) emergency response workers. As defined in the interpretive guidance document, they are:

· Collateral duty emergency responders typically serve as the on-site emergency response team at a fixed location and have a relatively high level of knowledge about the hazardous materials and situations with which they are expected to perform the emergency response activity.

· Off-site emergency responders are required to be prepared to respond to hazardous materials emergencies in a nearly unlimited response environment about which they may have very limited prior information [11].

Collateral duty emergency response workers addressed by this document include “part-time industrial and transportation emergency responders, as well as uncontrolled RCRA emergency response (workers).” The Minimum Criteria document specifically did not address the training needs of these workers and was directed mostly toward firefighters and police personnel. The interpretive guidance workshop extended recommendations for training to the following categories of workers.

1. Industrial workers with part time duties in chemical emergency response

2. Hospital workers: Service and maintenance; Housekeeping; Trades and building maintenance

3. Technical: Nurses; Lab, X-ray and specialty technicians; Other health care workers

4. Educational workers

5. Security guards

6. Transportation: Highway, Railway, Warehouse

7. Water and Sewer workers

8. Wastewater treatment plant workers

9. Water treatment plant workers

10. Department of Public Works

11. Sanitation Department workers

12. Maintenance

13. Street and Highway Department maintenance workers

This list represented a major step forward in a debate that had been taking place within the NIEHS SWT program for more than six years. Unions such as the International Chemical Workers Union (ICWU) and the United Steel Workers of America (USWA), as well as the Oil, Chemical, and Atomic Workers Union (OCAW), had been calling for support from other unions and organizations in the program for extension of the HAZWOPER training to apply to workers, who, in the course of their normal work activities, might have to respond to a less-than-minor spill or leak of a hazardous substance. However, the International Association of Fire Fighters (IAFF) believed that response actions at private facilities would and should lead to calls for fire service response, and therefore, training should be provided primarily to these workers. In addition, OSHA was receiving, or was concerned about receiving, challenges from employers and employer associations, who did not want to be required to provide the more extensive HAZWOPER training in addition to Hazard Communication Standard training. For both of these reasons, the NIEHS SWT awardees had not been able to agree on a unified position regarding the requirement to provide at least Awareness Level training to industrial and service/public sector workers who may be required to respond to a hazardous substance emergency [12].

Between 1990 and 1994, the ICWU, the United Auto Workers (UAW), USWA, and representatives of other unions and workers, and university programs countered the IAFF assertions regarding such response actions by stating that employers generally would not call in the local fire service because they would not want them to know what was going on in the facility. Other unions, including those representing rail workers, service industry employees, and public sector employees, believed training was needed for workers who may be first to witness or discover a release. The IAFF wanted support for asserting hazardous materials incident emergency response activities as the role of firefighters and the other groups wanted IAFF support for the training needs of other workers who would be called upon to respond to a hazardous materials emergency incident [13].

The NIEHS SWT program started in 1987, with an initial eleven awards to various consortia and programs across the country. Five of the awards were either to labor unions or labor/management trust funds -- representing construction workers, manufacturing and processing workers, and firefighters. In 1990, 1992, and 1995, NIEHS issued requests for proposals and made awards which extended the number of awardees. By 1995, program participation by more manufacturing unions and service-sector unions had increased. The needs of workers represented by the manufacturing, processing, and service-sector unions, as well as primarily non-union workers who received their training from university consortia participating in the SWT program, led to an agreement to include the above listed worker categories [14, 15].

This division of emergency response workers into two broad groups was an important compromise. It acknowledged that firefighters maintain substantial responsibilities for hazardous chemical emergency response incidents, requiring extensive training. It also acknowledged that a large segment of workers in manufacturing, chemical and oil processing, transportation, distribution, and throughout the service and government sectors need at a minimum, Awareness-Level Emergency Response Health and Safety training that complies with the requirements of 29 CFR 1910.120.

AFSCME IN THE SWT PROGRAM: WORKERS WITH A COLLATERAL FOR HAZMAT ER

The American Federation of State, County, and Municipal Employees International Union (AFSCME) represents government workers, many of whom are responsible for waste management. They include workers in these types of operations: sanitation, water and wastewater treatment, public works, and facility maintenance (education, health care, long-term care, recreational, institutional, and so forth.). Increasingly, as hazardous materials are used by government agencies as a component of service production processes and as government agencies continue to manage hazardous waste (water-borne and solid -- which becomes airborne through incineration), government workers -- many of them AFSCME members -- face higher risks from hazardous waste exposures. Unfortunately, in not a few instances, these hazardous materials are being employed as a way of facilitating a reduction in government employment levels. For example, toxic and hazardous cleaning chemicals and herbicides permit a few workers to conduct operations that formerly required much larger crews.

An understanding that union members with actual and potential hazardous waste exposure risks require strong health and safety support led to the development of an NIEHS-supported hazardous materials emergency responder health and safety training program. The program provides members with the following types of health and safety training courses: First-on-the-Scene Awareness Level; 24-hour Confined Spaces and Hazardous Materials; 24-hour Operations Level; 40-hour Technicians Level. The union also provides a 40-hour Train-the-Trainer course which is used to develop peer trainers. The AFSCME training program has been implemented successfully in many cities, including in Toledo, Ohio; Kalamazoo and Ypsilanti, Michigan; Washington, D.C.; Salt Lake City, Utah; Indianapolis, Indiana; and other Midwestern cities. A discussion of the program and its political context has been presented previously [16].

THE AFSCME EXPERIENCE IN TOLEDO

Many City of Toledo employees are represented by AFSCME, including those at the Department of Public Works (DPW) and the Department of Public Utilities (DPU). AFSCME represents both blue- and white-collar (lower ranking supervisors) job classifications in the city, organized in two separate locals.

After negotiations between AFSCME Health and Safety International staff, AFSCME Council 8 staff, and city managers, AFSCME was able to offer a 40-hour Train-the-Trainer (TTT) course to develop a team of  local members who could help AFSCME staff deliver emergency responder First-on-the-Scene training.

Review of the OSHA HAZWOPER standard training requirements led to a decision that Awareness Level training was applicable to hundreds of city employees. The training was provided by peer trainers who attended the  40-hour TTT course. Most of the employees trained by the peer trainers belonged to Toledo’s DPU and worked in blue-collar job classifications, operating the water and wastewater treatment plants, maintaining sewer lines, and cleaning streets and parks.

In July 1996, an evaluation team conducted a group interview at Toledo’s Water Reclamation Plant. Five city employees who were trained to become health and safety trainers in 1994, and have since conducted training, were interviewed. The group interview with the  peer trainers was held about two years after their TTT training. In November 1996, four of the employees trained by the peer trainers also were interviewed, about two years after their Awareness Level training.

The interviews provided data confirming several aspects of the workers’ jobs. First, a large percentage of the city’s DPW and DPU work force maintains a collateral duty to respond to a hazardous materials emergency. Secondly, the Awareness Level health and safety training, which was only a single eight-hour period of training, supported the workers’ needs for information and strategy planning. It helped them and the city’s departments to change working conditions so that emergencies were either more likely to be prevented or responded to in a manner that was more likely to prevent injuries and fatalities. The following section provides some of this data.

IMPACTS OF TRAINING

The interviewed AFSCME members explicitly credited the eight-hour awareness level training for giving them the initial information necessary to understand the interplay between technical and scientific information on workplace hazards and their rights and responsibilities in the workplace, as manifested in the Occupational Safety and Health Act (OSH Act). Therefore, as important as the understanding of emergency response technical knowledge was their realization that employees can only exercise their workplace rights, such as refusing unsafe work or filing an OSHA complaint, after gaining some knowledge about workplace hazards:

“OSHA is fine, but if you don't know that a hazard exists, they’re not responsible. ... The administration and the workers have all gone through this. Now everybody has been made aware of all the hazards that are basically around.” And: “People found out they had the right to question whether it was safe or not.”

A fellow employee synthesized the group’s perceptions by characterizing the Awareness Level training as the “spark plug for safety awareness.”

There were marked changes in the procedures used by the Sewer Division to deal with spills that required the participation of city employees. After the eight-hour awareness level training, some DPU employees were selected for Operations Level training. Furthermore, the interviewees believed the TTT program served as the gateway for employees to get training in those lengthier courses required by the OSHA HAZWOPER standard for workers who respond defensively (usually the case in Toledo) or aggressively (for example, in case of a chlorine leak in the ton containers used in the wastewater facility) to leaks or spills.

One trainer talked of having “steward vision.” That is, he believed “ ... it was important for our folks to become knowledgeable and receive additional training ... ” His concerns were founded on the past practice by the fire department of calling DPU workers to respond to hazardous materials spills that could flow into a sewer. Since the training courses, procedures have been put into place to assure that only “ ... trained people go over to meet with the Fire Division in regard to a spill.” He stated that as a result of the training, employees were better able to communicate to management the need to establish appropriate health and safety procedures. One thing that helped was attendance by supervisors and administrators at training courses: “They were learning the same things that the workers were learning, and that opened a lot of their eyes. ... Administration and labor were both on the same street at that point, as opposed to, hey, you know this guy is out on the expressway and this guy is here on local roads.” This led to changes in management practices.

One employee expressed his perception that “Prior to the training ‘stupid things’ were being done and were considered ‘just normally accepted practices ... from the Commissioner on down.’” An example was provided. “When you had something in the hole and you had to clean out a channel, you’d go down in there, and the way you’d get down in there was to ride the cleaning hose down. It had a small nozzle about this big. You put your feet around and hang on and ride down it ... We wouldn’t think of doing stuff like that now. I don’t think there is anybody in the work force that would think about going into a hole like that now.”

All participants in the interviewed groups expressed the opinion that AFSCME’s TTT program contributed to changing emergency response procedures in Toledo. According to them, new policies and standard operating procedures were written after the training course. Here is one trainer’s explanation of how inappropriate past practices were discontinued and proper written procedures were put into place:

“ ... Instead of a lack of policy and procedure, there was a policy and procedure and it was followed ... maybe not completely ... Maybe the policy wasn’t the best to start with, but it was a step in the right direction.”

Other examples of workplace practice changes that occurred include a request for respirators by bridge maintenance workers before they would manipulate bridge expansion joints, as recommended by the manufacturer. In the past, the job was done without them wearing any personal protective equipment. A similar situation happened with water treatment workers who started asking safety-and-health-related questions before manipulating chemicals used to disinfect the water.