Business, Labor Fight Over Hazmat Handling

"Response, cleanup, training, personal protective equipment -- those are issues that OSHA regulates in other industries," said LaMont Byrd, director of safety and health for the International Brotherhood of Teamsters. "They are best suited to this. That's the bottom line."

Richard Inclima, director of safety and education for the Brotherhood of Maintenance of Way Employees, said railroad workers need OSHA protection "because DOT has absolutely no standards for the protection of human beings when the package is breached," adding, "You would leave railroad workers and those responding with no protection."

The AFL-CIO also has gotten involved in the lobbying battle over the provision.

"[Business officials] don't like OSHA, and if they could figure out a way to eliminate shared jurisdiction, they would have one agency to contend with -- maybe one that they can influence better," said Edward Wytkind, president of the transportation trades department of the AFL-CIO.

As for industry's argument that the OSHA jurisdiction stems from typos, Wytkind said: "A decade and a half of precedent isn't a typo. It doesn't pass the laugh test." He points to a 1994 recodification of the law, which left the intent intact, and a recent DOT rule on the loading and unloading of such materials that the unions say reinforces OSHA's authority in certain areas. Industry has sued over that rule, and there are 14 petitions challenging it.

Industry groups worry that OSHA could expand its oversight of the industry. They fear duplicative regulation, a lack of national uniformity in rules and efforts by states to exert more of their authority. Many people in the industry say they are not opposed to OSHA regulating the training of workers to mitigate a hazardous materials release, but anything much beyond that is not welcome -- or permitted in the intent of the legislation, as they see it.

To this end, various industries have been operating a full-court press to convince highway bill conferees that this is the time to correct the legislative "error."

"Shared jurisdiction was not contemplated," said Richard Moskowitz, regulatory affairs counsel for the American Trucking Associations.

Cynthia Hilton, co-facilitator for a group called the Interested Parties for Hazardous Materials Transportation, which represents shippers, carriers and others involved in transporting hazardous materials, said it has been working since 1997 to address the "error."

She stressed that the industry supported "DOT's high level of regulation" and was not trying to evade "necessary regulation."

But, she said the "unintended sweeping authority" over the handling of hazardous materials doesn't make sense "for a number of reasons, ranging from unnecessary regulatory duplication to serious safety and security concerns as the regulated community attempts to comply with overlapping and, in some cases, conflicting complex requirements."

The House bill is silent on the jurisdictional issue, while the Senate version eliminates some OSHA authority, but not over hazmat handling.

The Bush administration recently suggested what it called a compromise that would address "a long-standing error made in 1990 to hazardous materials authorities." Not surprisingly, its solution would limit OSHA's reach.