Lessons From Superfund and RCRA 2 he United States has had nearly 20 years’ experience with hazardous waste operations at Resource Con- servation and Recovery Act (RCRA) and Superfund sites, Much of this work has involved site characteriza- tionT efforts: attempts to identify the nature of site pollutants and to map their locations, concentrations, and environmental trans- port routes. In addition, emergency removals of contaminants have been carried out at about one-third of all (non-Federal) sites 12 on the National Priorities List (NPL). permanent cleanup ac- tivities and construction projects that usually involve more com- plex and lengthy remediation actions are just getting underway at most sites. Nonetheless, the RCRA-Superfund experience of- fers important lessons about protecting the health and safety of workers engaged in environmental remediation—lessons that are directly applicable to cleanup of the Nuclear Weapons Complex. The RCRA - WORKER PROTECTION ISSUES WITHIN THE Superfund REGULATORY PROCESS experience offers Competition Between Worker Protection and Other Cleanup Priorities important lessons The environmental laws and regulations that drive the goals about protecting and schedules of most environmental cleanup operations do not assign worker health and safety a high priority. Superfund and worker health RCRA regulations and procedures are complicated, and are in- tended to guide employers through the multitude of technical & safety uncertainties and necessary assumptions that are inevitably part of environmental remediation.3-5 Amid the complexities and controversies surrounding site characterization, remedial design, 19 20 I Hazards Ahead: Managing Cleanup Worker Health and Safety at the Nuclear Weapons Complex and cleanup, the information and programs need- investigations of worker protection issues associ- ed to ensure the safety and health of cleanup ated with “enclosures” at hazardous waste sites a workers and emergency responders can be over- high priority.9 shadowed or neglected. In setting cleanup priorities, site owners, man- Weak Oversight of Occupational Health agers, and regulators must contend with a range and Safety Rules by Regulators of issues and goals, such as the concerns and pri- The Occupational Safety and Health Act holds orities of local communities, technical obstacles all employers responsible for providing workers to meeting target levels of residual contamina- with “safe and healthful working conditions.”10 tion, legally binding agreements on cleanup The Occupational Safety and Health Admin- schedules or project “milestones,” and cleanup istration (OSHA) standard for Hazardous Waste costs. The importance of worker health and Operations and Emergency Response (HAZ- safety protection may become lost in this welter WOPER), enacted to protect cleanup worker of competing issues, especially when the work- health and safety, mandates a structured, but non- force is unorganized, transient, and inexperi- specific, performance-based approach to worker enced—as is the case for a large proportion of protection during hazardous waste operations 6 cleanup workers —and when work-related ill- and emergency response.ll Under this standard, nesses are not clearly linked to specific work crucial and complex decisions about how to hazards or appear only years after initial expo- identify and mitigate cleanup worker health risks sure. are left to the judgment of individual employers. The Agency for Toxic Substances and Disease The quality and the comprehensiveness of Registry (ATSDR) is responsible for determining health and safety programs implemented under the potential human health impacts of toxic ma- HAZWOPER at Superfund and RCRA sites are terials released into the environment. ATSDR has reported to vary widely.12 13 These inconsisten- broad statutory authority to evaluate the human cies stem from several sources, including of in- health implications of environmental toxicants, formation gaps and uncertainties about necessary and has occasionally intervened to protect the levels of worker protection; differences in the 7 health of cleanup workers. ATSDR officials are rigorousness with which different employers rarely present during cleanup operations howev- pursue worker safety and health protection; er, and the Agency’s work focuses mostly on OSHA’s failure to issue detailed guidance docu- possible off-site health effects of Superfund and ments that would help employers to interpret and RCRA pollution. apply the broadly worded HAZWOPER regula- In some circumstances, efforts to mitigate tion; and a weak OSHA enforcement effort. risks to off-site populations may increase the OSHA and EPA cooperatively developed an health and safety hazards faced by cleanup work- OSHA inspection protocol for incinerators at 14 ers. For example, at one Superfund site, contrac- Superfund sites. In general, however, OSHA tors proposed construction of a structure to pre- enforcement of HAZWOPER has been weak.15 vent air releases of volatile organic compounds OSHA has about 1,000 inspectors (including su- (VOCs) that were being pumped from contami- pervisors and trainers) to enforce health and safe- nated groundwater. However, workers operating ty standards for almost 3.6 million employers 16 within this structure would have been exposed to and 55 million workers. Aside from the hand- VOC levels that were up to half the concentration ful of planned Superfund incinerator inspections, believed immediately dangerous to life and OSHA has not targeted the more than 4,000 8 health, OSHA and EPA recently agreed to make RCRA sites that may require or have undergone Chapter 2–Lessons From Superfund and RCRA 21 remediation, or the 1,354 sites on Superfund’s with environmental cleanup work and are rarely NPL17 18 as high priorities for OSHA inspec- present during cleanup operations. The EPA reg- tions. ulators who are most familiar with hazardous EPA is the Federal agency with the most ex- waste work know little about OSH matters and pertise in hazardous waste operations. However, refuse to enforce OSHA standards. The net result EPA staff are not well prepared to assess or over- is that interpretation and implementation of see worker health and safety during cleanup. Few cleanup worker OSH standards are highly vari- of EPA’s regional staff or project managers have able and are left, essentially, to the voluntary ef- occupational health and safety backgrounds. forts of employers.25-27 Currently, EPA maintains that it does not have the authority to enforce OSHA’s HAZWOPER EPA-Labor Health and Safety Task Force requirements .19 The EPA Office of Solid Waste and Emer- EPA has, at times, neglected to consider work- gency Response (OSWER) has established the 20 21 er risks when selecting cleanup options. EPA-Labor Health and Safety Task Force, con- Although EPA officials have acknowledged the sisting of employees from EPA, OS HA, the need to weigh worker health risks against the National Institute of Occupational Safety and benefits of particular remediation measures, they Health (NIOSH), the Army Corps of Engineers have developed a formal means of doing so only (ACE), and representatives of labor unions in the past few months, and the effectiveness of whose members frequently conduct cleanup the proposed changes in EPA’s risk assessment work. Regular meetings of the Task Force have 22 approach has yet to be tested. provided a collegial, nonbureaucratic setting in EPA’s principal goals, which are largely a re- which participants can discuss problems associ- sponse to public and congressional pressures, are ated with the interpretation and enforcement of to reduce the time needed to complete the RCRA HAZWOPER from a technical and professional and Superfund processes, and to accomplish perspective, 28 outside the policymaking process. cleanup more cheaply. A recent proposal for a The Task Force is situated in the EPA office “new Superfund paradigm” is designed to speed that has line control over remedial action pro- up site assessments and initiate activities early on grams. Task Force members believe this organi- in the cleanup process to reduce “immediate zational position gives it greater authority and 23 risks.” It is not clear how this new paradigm persuasive powers with contractors and construc- will affect cleanup worker health and safety. tion managers than if it were located in a health Some contend that these “faster, cheaper” priori- and safety oversight unit. ties are at odds with worker protection needs, The Task Force has facilitated the clarification which might in certain cases dictate a “go-slow” and integration of EPA, OSHA, and ACE poli- approach to unusually hazardous situations or cies, and has been constructive in identifying 24 when implementing innovative remedies. some of the more pressing and pervasive worker Neither the assessment of cleanup worker protection problems at RCRA and Superfund health and safety risks nor the evaluation of pro- sites. One major accomplishment of the group is posed and implemented worker protection pro- the preparation of “fact sheets,” or simplified grams has high priority for the regulatory agen- guidance documents, on topics that have been cies most involved with the implementation of problematic at Superfund sites.29-34 Other ac- Superfund and RCRA. The OSHA regulatory of- complishments that have been stimulated by ficials who are most knowledgeable about work- needs identified by the Task Force include a er protection issues generally are not familiar Memoranda of Understanding