The results of a Freedom of Information Act (FOIA) request added fuel this summer to the simmering debate over whether OSHA, during a national emergency, should enforce its personal protective equipment (PPE) standard or merely take a consultative approach.
The FOIA request, filed by the New York Occupational Safety and Health Committee (NYCOSH), explored OSHA decision-making during clean-up in the wake of the 9/11 attack at the World Trade Center. Even after the initial crisis had passed, OSHA did not enforce its PPE standard. More recently, OSHA was also questioned for failure to enforce PPE regulations in the aftermath of Hurricane Katrina.
With regard to the Ground Zero clean-up, the FOIA request uncovered a trail of email and other documents showing that the New York City Department of Health (NYCDOH), the Federal Emergency Management Agency (FEMA) and the New York City Fire Department (NYCFD) all asked for OSHA enforcement during October 2001 when the immediate crisis had passed and extensive clean-up efforts were underway. Despite the requests, OSHA did not enforce its regulations. It is estimated that as many as 60,000 workers and volunteers assisted in the clean-up. Though no one knows what portion failed to use proper PPE, anecdotal reports suggest that unsafe exposure was commonplace. Already, as many as 60 percent of all Ground Zero workers have shown some signs of respiratory illness and some have died due to their exposure.
Reacting on October 7, 2001 to inconsistent PPE use at Ground Zero, NYCDOH official Kelly McKinney emailed OSHA Regional Administrator Patricia Clark to say that “NYC may formally ask the Secretary of Labor to direct OSHA to do enforcement as they believe the contractors ‘fear’ OSHA’s ability to issue penalties and that would cause compliance.” Later that month, in four safety task lists dated October 10, 12, 14 and 16, NYCDOH cited PPE enforcement as an ongoing issue. In each case, the need for “enforcement powers” was indicated. Then, after an October 23rd Emergency Operations Center meeting, McKinney again emailed Clark, writing that one union “indicated they could get better compliance from their workers if OSHA enforced the regulations.” McKinney agreed with that assessment, saying he “understood [OSHA’s] position, but still felt OSHA enforcement would be useful at this site.” Again on October 24, the safety task force listed PPE enforcement as “critical,” and on October 26, FEMA asked the Federal Marshals to enforce safety regulations on the site. The Marshals responded that they did not have jurisdiction and “only [get] involved in private contractor safety and health matters when requested by OSHA.” Finally, on October 30, when the NYCFD and the NYC Department of Design and Construction assumed command of the clean-up operation, McKinney repeated his request for OSHA enforcement but “was informed that [OSHA] would continue in [OSHA’s] consultative role,” according to WTC Update 32.
NYCOSH Industrial Hygienist David Newman and former OSHA Director John Henshaw, who headed OSHA during the 9/11 emergency, offered sharply differing perspectives during a hearing before a House Judiciary subcommittee on June 25th.
In awkward testimony, Henshaw defended his decision not to enforce the PPE standard. “If our purpose was to save lives and avoid injury and illnesses, we did not have years, months or even weeks to wait for corrective action,” he said. “We had to deploy a strategy that achieved immediate compliance as soon as the hazard was recognized so corrective action was immediate.”
However well-intentioned, Henshaw’s decision failed to accomplish its goals, as the evidence now reveals. PPE compliance remained spotty, and unnecessary exposure was facilitated. Testifying at the same hearing, Newman summarized, “The problem with the consultative approach was not that it was inappropriate, but that it was ineffective.”
“The purpose of this hearing,” says LIUNA General President Terence M. O’Sullivan, “is to learn lessons so that in another crisis situation, similar mistakes are avoided. Right after 9/11, the nation was focused on the urgency of the rescue effort, and workers – including many LIUNA members – jumped in to help. We’re proud of their heroic efforts.
“Their heroic efforts involved risk,” O’Sullivan continues, “but after the immediate crisis passes, OSHA standards need to be enforced and followed. If OSHA had enforced its own rules, companies would have complied, and today’s health crisis among clean-up workers would be much diminished. This is the lesson that needs to be drawn from this tragic event. Future rescue and recovery workers need protection.”