From Ship to Shore: Reforming the National Contingency Plan to Improve Protections for Oil Spill Cleanup Workers
Rebecca M. Bratspies
City University of New York - School of Law
University of Florida
Thomas Owen McGarity
University of Texas at Austin - School of Law
Sidney A. Shapiro
Wake Forest University School of Law
Rena I. Steinzor
University of Maryland Francis King Carey School of Law; Center for Progressive Reform
Center for Progressive Reform
Center for Progressive Reform Working Paper No. 1006
U of Maryland Legal Studies Research Paper No. 2010-59
Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies and government agencies with a stake in guarding against and cleaning up the spills that inevitably accompany oil drilling have had ample opportunity and motivation to devise and hone plans for protecting workers. And yet, thousands of cleanup workers began their work in the Gulf without the training and guidance necessary to ensure their safety in the face of hazardous conditions.
The Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH) eventually settled on policies for training workers and requiring appropriate safety gear. Their response undoubtedly helped limit the risks the workers faced. But the time it took to settle these policies put into sharp focus a significant problem in our nation’s emergency response policies: OSHA and NIOSH had only limited roles in the planning process and in the development of implementing regulations, a failing that badly slowed the government’s response on the worker-safety front. From this “original sin” flowed a number of negative consequences, some of which compromised the health and safety of cleanup workers.
• Too many workers in the Gulf were given inadequate training on the use of personal protective equipment. Employers and individual workers were thus left to determine on their own how to resolve the difficult question of what level of PPE was appropriate for their particular work environments. The most difficult issue was respirator use. A properly worn and properly functioning respirator puts additional stresses on the cardiovascular system, creating acute hazards that might be more dangerous than the long-term hazards of exposure to the air contaminants the respirator is designed to filter, particularly in the heat and humidity of the Gulf coast summer.
• Contractor and individual worker decisions about safety gear were complicated by an insufficient understanding of the chemical exposures faced by workers engaged in various tasks. No one knew the precise contents of the oil dispersants applied by BP because they were protected for several months as confidential business information under EPA’s liberal trade secrets policies. Moreover, toxicity testing required by the Oil Pollution Act only assessed ecological toxicity, not toxicity to human health.
• Air quality monitoring designed to characterize worker exposures was inconsistently summarized and published by BP and OSHA.
• BP’s medical recordkeeping following the explosion of Deepwater Horizon appeared to under report workers’ injuries and illnesses, in part because OSHA’s regulatory definitions enabled employers to avoid reporting certain health effects.
Significantly, OSHA and NIOSH also did a number of things well.
• OSHA quickly moved additional personnel to the region, thus enabling frequent site visits to address worker safety and health hazards.
• OSHA overcame an early and significant jurisdictional problem, extending through a Memorandum of Understanding with the federal on-scene coordinator the reach of its worker safety authority beyond the three nautical mile limit from the shoreline.
• OSHA and NIOSH developed a “matrix” of various tasks in which cleanup workers were engaged, a model that could be used to improve planning for future oil spills.
• NIOSH attempted to compile a roster of all workers involved in the cleanup so that it could more readily track health effects.
• NIOSH began a Health Hazard Evaluation and published interim reports of its work.
This report offers six specific recommendations:
• EPA and the Coast Guard should require Regional Response Teams and the oil industry to develop a matrix of likely or foreseeable cleanup tasks for each level of spill, from routine to worst case scenario, in consultation with NIOSH and OSHA. The cleanup task matrix should be the basis for planning task-specific levels of training, air quality monitoring and sampling protocols, and personal protection equipment (PPE) choices.
• EPA and the Coast Guard should include OSHA in the chain of command that approves Regional Contingency Plans and site-specific contingency plans in order to ensure that cleanup workers’ health and safety are properly addressed.
• EPA and the Coast Guard should require a NIOSH Health Hazard Evaluation for any spill that demands a significant number of cleanup workers or long-term cleanup efforts, paid by the company responsible for the oil spill.
• As they revise the National Contingency Plan, EPA and the Coast Guard should consult with volunteers, employees of oil spill response organizations, and occupational health specialists who have been involved in major disasters including the Valdez, Prestige, and Horizon spills.
• To ensure that adequate training and worker protection are provided, regulators should permanently adopt the provisions of the June 10 Memorandum of Understanding between OSHA and the federal on-scene coordinator that guarantee OSHA’s leadership is included in all consultations about the implementation of cleanup under the national and regional contingency plans.
• The White House should seek an emergency, supplemental appropriation for OSHA to support the substantial extra resources required to participate in this unprecedented response. Already operating on a shoestring budget, the failure to grant substantial additional resources to the agency will only endanger other workers for the sake of workers in the Gulf.
Keywords: environmental protection, clean-up, reformAccepted Paper Series
Date posted: December 13, 2010
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