Hmmmmm Terrorism & OSHA: Part 2

HAZWOPER & Emergency Action Plans By Glenn S. Demby

As noted last week, OSHA considers the threat of terrorist attack to be a workplace hazard but treats it as what former Secretary Henshaw characterizes as "a completely different case." Accordingly, there is no OSHA standard on terrorism and no plans to create one. But that raises a key question:

How do the existing OSHA standards apply to terrorist-related hazards?

Relevant Standards

OSHA has published two standards requiring employers to take steps to protect employees in emergency situations including, arguably, terrorist attack:

1. HAZWOPER

The Hazardous Waste Operations and Emergency Response Standard, (1910.120), is designed to protect workers working at hazardous waste sites, treatment, storage and disposal facilities or responding to an emergency involving the release of a hazardous substance.

2. Emergency Action Plans

The Emergency Action Plans standard, (1910.38), sets out requirements employers must follow when they're required to create an emergency plan under another OSHA standard, e.g., in the event of fire. Plans must be in writing, reviewed with employees and include, among other things, escape routes and procedures, employee accounting after an emergency evacuation and rescue and medical duties.

How the Standards Apply to Terrorism

The original intent of both the HAZWOPER and Emergency Action Plans standards was to protect against accidental spills and releases of hazardous substances (in the case of HAZWOPER), or fires and other emergencies (in the case of Emergency Action Plans).

Would a terrorist attack involving the deliberate release of toxic chemicals, biological agents and other hazardous substances trigger employer obligations under HAZWOPER?

Similarly, would an employer's obligation to plan evacuation routes and procedures and take other precautions under the Emergency Action Plan standard apply to the deliberate detonation of a bomb or other form of terrorist attack?

OSHA has issued two interpretation letters directly answering these questions: One on November 24, 2003 written by Enforcement Director Richard Fairfax (the Fairfax Letter); and one personally written by Henshaw on May 24, 2004 (the Henshaw Letter). OSHA took the same position in each case:

Terrorist Planning Is Not Required

According to the Henshaw Letter, "terrorist events are not considered foreseeable workplace emergencies for purposes of OSHA standards requiring employers to anticipate and prepare for such emergencies." The Fairfax Letter includes a similar statement: "Terrorist events are not considered foreseeable emergencies that OSHA expects an employer to reasonably anticipate in the workplace."

Both letters make the point that employers should seek the help of the Local Emergency Planning Community if they choose to consider the risk of terrorist attack as part of their emergency response plan .

Subsequent language in the Henshaw Letter states the point more explicitly: "While following the direction of [HAZWOPER and the Emergency Action Plans standards] would not be required specifically to prepare for a potential terrorist event in an office building, following the elements of these standards may also be of assistance to employers in developing a useful plan of action to respond to any emergency situation." (emphasis added)

The Bottom Line: Neither HAZWOPER nor the Emergency Action Plans standards require employers to plan for a terrorist attack. OSHA hopes they will but won't cite them if they don't. "OSHA's role," the Henshaw Letter explains, "is not limited to enforcement, but includes a mandate to advise employers and employees and organizations . . . as to effective means of preventing occupational injuries and illnesses."

This approach is perfectly consistent with the carrot-over-the-stick policy enunciated by Secretary Henshaw in his speech to the postal workers union after the anthrax crisis of October 2001 that we discussed last week.

OSHA Applies to Response to Terrorism

However, there's another side to the OSHA policy. OSHA draws a line between planning for terrorist attack and responding to it. In other words, employers aren't required to prepare for a terrorist event; but once it occurs, the usual OSHA obligations apply.

For example, HAZWOPER requires employers to take certain steps to protect rescue workers who respond to hazardous releases. Employers must follow these requirements even if the release is the deliberate act of a terrorist. According to the Henshaw Letter, "the release of chemicals or hazardous substances into a workplace, whether it is caused by an accidental release or a terrorist event would . . . be considered a hazardous materials incident" triggering requirements governing the protection of emergency responders and workers performing remediation efforts. The Fairfax Letter includes similar language.

Conclusion

Under current OSHA interpretation, employers who don't include the risk of terrorist attack as part of their emergency planning obligations aren't at risk of citation. However, if an event occurs and the hazard is created, the usual OSHA standards apply. This is true whether the event is an accident or the result of deliberate action by a terrorist.

Next week we'll look at how the OSHA General Duty Clause and Recordkeeping Requirements apply to terrorism.

EDITOR'S NOTE
The OSHA Matrix

Last week's article referred to an OSHA terrorism matrix that employers can use to determine the risk of terrorist attack. This isn't quite right. There is no single terrorism matrix. OSHA has in fact created four separate matrices related to terrorist risk:

1. Anthrax Risk Matrix: http://www.osha.gov/SLTC/etools/anth...al.html#matrix

2. Matrix on Risks Faced by Emergency Responders: http://www.osha.gov/SLTC/emergencypr...rix/index.html

3. Evacuation Matrix: www.osha.gov/dep/evacmatrix.html

4. Fire & Explosion Planning Matrix: www.osha.gov/dep/fire-expmatrix/index.html

Sorry for any confusion.

Glenn Demby
Editor-in-Chief
SafetyXChange

The Canadian Perspective

Although the general approach of OSHA to terrorism is similar to what happens in Canada, this piece deals with interpretations of U.S. standards by U.S. regulators. So it's not really relevant in Canada.

Here's something you'll find more useful:

C-45 QUIZ

Background: To convict an individual of a crime under C-45, the Crown must prove 4 things beyond a reasonable doubt:

1) The individual directed or had authority to direct work

2) The individual didn't take "reasonable steps" to protect the injured worker

3) The failure to protect was wanton or reckless disregard for life and safety

4) The offence resulted in bodily harm

The Situation: A trained forklift driver parks his vehicle on an incline and gets out. The driverless forklift begins to roll backward down the incline and seriously injures a worker. The investigation shows that the driver had applied the parking brakes but they were defective. Provincial OHS law requires that forklifts be thoroughly inspected at least once a month. The forklift in question hadn't been inspected for over six months. If it had been it would have been pulled from service and the accident would have never happened. The supervisor in charge knew that there could be a problem but didn't care enough to do anything about it.

Question: Would the supervisor be guilty of criminal negligence under C-45?

Answer: Probably

Explanation:

All 4 elements are in place.

1) The supervisor directed or had the authority to direct how the work was done.

2) The supervisor violated the duty to take reasonable steps to protect. How do we know? Because he didn't follow the OHS law. That would most likely constitute failure to take reasonable steps.

3) The supervisor appears to have shown wanton and reckless disregard of life and safety. Knowing about a danger and not caring enough to do anything about it would likely be enough to show wanton and reckless.

4) A worker suffered bodily injury as a result of the supervisor's offence.