In National Emergencies, OSHA to Provide Assistance, Not Enforcement

OSHA employees worked long hours during the emergency operation, and there were no fatalities at one of the nation's most hazardous sites. In the years that followed 9/11, however, the decision to suspend OSHA's traditional enforcement authority has aroused controversy.

As the work around the old World Trade Center (WTC) proceeded, critics claim some workers did not wear proper respiratory protection and were not protected from the toxic atmosphere that was present.

"Now, literally 6,000 heroic workers who responded in that emergency are seriously ill," according to Joel Shufro, executive director of the New York Committee for Occupational Safety and Health (NYCOSH), a leading critic of OSHA's handling of safety and health at the former WTC site.

In its new National Emergency Management Plan (NEMP), the agency has clarified that in the future, OSHA will not enforce safety rules, but will instead "provide technical assistance during large-scale emergencies," according to an OSHA official. A major part of OSHA's assistance role during the emergency phase of nationally significant incidents "includes the assessment and the management of the risks faced by first responders and recovery workers," the official explained.

The management of these risks includes using OSHA standards, but this will be done within the National Incident Management System (NIMS) and the National Response Plan (NRP), which are administered by the Department of Homeland Security (DHS).

The OSHA regional administrator in whose region the incident occurs may seek to regain OSHA's traditional enforcement authority, but this shift must be based on "the incident's unique set of conditions and risks" and only after consultation with the politically-appointed assistant secretary of labor for OSHA.

"OSHA's NEMP has some shocking flaws," commented Shufro. "OSHA's role will be limited to providing 'advice and consultation' with the result that standards that are specifically designed for emergencies, such as the Hazardous Waste Operations and Emergency Response standard will be treated as merely advisory."

Donald Elisburg helped prepare a report for the National Institute for Environmental Health Sciences on the lessons learned from the recovery operations at the WTC. "The question is not whether someone will get cited," Elisburg contended, "but who in fact is responsible for the health and safety of first responders and skilled support personnel. Someone has to say: 'You are required to wear a respirator,' and assure it's done."

The Department of Homeland Security (DHS) appears to be following Elisburg's advice. In March, DHS released a memorandum spelling out NIMS, "a core set of principles" that will "enable effective, efficient, and collaborative incident management at all levels. The document provides for a safety officer (SO) who has the ultimate responsibility for the safety of workers and who reports directly to the incident commander. The SO has "emergency authority to stop or prevent unsafe acts during incident operations."

The Federal Emergency Management Administration (FEMA), a part of DHS, has been charged with carrying out the management of future emergency recovery operations. A FEMA official explained that NIMS requires compliance with all OSHA regulations. Aside from the SO's emergency power to stop unsafe acts, however, it not clear how safety and health standards will be enforced.

"FEMA is not a regulatory agency," the official explained, "and therefore it has no role in enforcing workplace safety regulations."