OSHA Releases Self-Evaluation of its Role in Federal Response to BP Oil Spill

OSHA published a report (pdf) last week on its role in the federal government’s response to last year’s massive oil spill. Within days of the blowout aboard the Deepwater Horizon, OSHA officials were in Louisiana, working to ensure that the people involved in the response and cleanup had adequate protection from the myriad hazards they would face. The new report is mainly a list of accomplishments, not an introspective “lessons learned” self-evaluation that could have paved the way for policy changes that would improve the federal oil spill response system. Nevertheless, the document is worth the read because it provides a good sense of the difficulty OSHA faced in protecting a huge workforce from so many hazards, as part of an unprecedented government response.

The report covers a handful of areas where OSHA did most of its work: site visits, intervention, and technical support; chemical exposure assessment; personal protective equipment (PPE); training; guidance and publications; community outreach; injury and illness reporting; and efforts to support the Labor Department’s big-picture goals of hiring local and displaced workers. 

The report’s sections on enforcement and training missed some key points that I would have liked to see the agency address. First, the report glosses over the issue of enforcement versus compliance assistance. Following the spill, OSHA chose to focus its staff’s efforts on maximizing site visits, at the expense of strong enforcement. The agency made the calculation that its limited staff in the Gulf region would be able to better protect workers by eschewing citations in favor of guidance and assistance to the employer (BP). In OSHA’s words:

During the Deepwater Horizon response, workers benefited from OSHA’s technical assistance role within the Unified Command. OSHA actively monitored BP’s development of site safety and health plans, provision of training, and voluntary abatement of hazards, including where no OSHA standard existed (e.g., heat stress). This vigorous intervention was possible, in part, because in its technical assistance role, OSHA had unlimited access to the workers and employers involved in the cleanup activities. By working within the Unified Command in a technical assistance role, hazards can be quickly abated. OSHA’s enforcement role can lead to litigation and potentially delay abatement of hazards.

OSHA’s total of 4,266 site visits, conducted by just 146 staff, is an impressive number, to be sure. And I’m willing to give OSHA the benefit of the doubt that they were able to better protect workers and obtain faster hazard abatement by avoiding an adversarial relationship with BP. But that is not a trade-off OSHA should have to make. Legislators in the state of Washington understand that point and recently passed a law that requires employers in that state to fix occupational hazards immediately upon citation by state officials—no longer can employers maintain a hazardous work environment by appealing a citation. Congress would need to amend the OSH Act to ensure similar protections for workers in other jurisdictions. That would be one of many worthwhile changes to the statute, a topic for a different post.

The post-spill enforcement issue brings to mind another concern that is missing from OSHA’s report: the opportunity cost of sending so many staff to the Gulf last year. If it weren’t for BP’s mismanagement of the well, all of the inspectors who went to the Gulf could have spent their time addressing hazards at other worksites, ensuring the safety of thousands of other workers around the country. OSHA’s top officials spent untold hours working on the response, likely to the detriment of other affirmative initiatives that might prevent future occupational injuries and fatalities. The opportunities lost because of BP’s mismanagement cannot be recouped. At the very least, BP should foot the bill for OSHA’s expenses during the response efforts. 

On the issue of training, OSHA’s report again glosses over a few key points. Oil spill response workers are supposed to be trained in accordance with OSHA’s HAZWOPER (Hazardous Waste Operations and Emergency Response) standard. The standard normally requires workers to take a 40- or 24-hour course, depending on job duties (the longer course is mainly for supervisors). Following the Exxon Valdez spill, OSHA adopted a new interpretation of the HAZWOPER standard that allows some cleanup workers to begin working with less than the standard 24-hour training. The post-Valdez decision was made to ensure that the standard would not prevent mass mobilization of cleanup workers who would have low-risk jobs. The directive isn’t entirely clear on the definition of low-risk jobs, except to say that the work must be “performed in an area that has been monitored and fully characterized by a qualified person indicating that exposures are presently and can be expected to remain under permissible exposure limits and other published exposure limits” and “health risks from skin absorption are minimal.” 

As we pointed out in our From Ship to Shore (pdf) white paper last year, the director of the National Institute for Environmental Health Sciences has gone on record to say that exception to the HAZWOPER standard for low-risk jobs was intended to apply only to workers with no exposure to crude or weathered oil. Worker safety advocates criticized OSHA about the training programs following the spill. Again, I’m willing to give the experts at OSHA the benefit of the doubt that the 24-hour HAZWOPER training might have been excessive for many of the cleanup workers. However, this report was a missed opportunity for the agency to explain its rationale for its training decisions and to review those decisions to determine whether workers were adequately trained.

Finally, the scope of the report is too limited. It focuses almost exclusively on OSHA’s work following the spill, relegating to the appendix the only mention of the agency’s role in pre-spill response planning. OSHA does not discuss how the agency’s involvement in the oversight of oil spill response planning may have affected response efforts in this disaster, much less how that involvement should change to prepare for the next disaster. In our report last year, we argued that cleanup workers’ health and safety were inadequately addressed in the National Contingency Plan, that planners “passed the buck” without establishing mechanisms in the planning process to ensure accountability for workers’ health and safety at each stage of the process. Getting the oil out of the United States’ existing reserves is a risky venture, whether we stick to already open areas or expand to new offshore drilling as the President and some Members of Congress have proposed. The Coast Guard and EPA need to revise the National Contingency Plan in a way that gives OSHA a stronger voice in the planning process.