A protracted battle between business and labor that questions which federal agency has jurisdiction over the handling of hazardous material -- after a decade of arguing -- has heated up again.
The disagreement centers on one word and its placement in a 1990 bill. The trouble is over whether Congress meant to say "section" or "subsection" when it was laying out regulatory responsibility in the Hazardous Materials Transportation Uniform Safety Act. Business says it is a typographical error. Labor says the wording is unmistakably clear.
The debate is alive again because congressional conferees are trying to iron out a section of the federal highway bill that addresses hazmat oversight.
The clash involves responsibility for hazmat oversight by the Department of Transportation vis-a-vis the Labor Department's Occupational Safety and Health Administration. Business reads the legislation to say that OSHA should supervise only a small section of the law, the "subsection," which has to do mostly with training. Labor reads the same law to say that the DOT cannot preempt OSHA from protecting workers who handle hazardous material, including equipping them with protective gear.
In the past, the fight has held up reauthorization of DOT's Research and Special Programs Administration, which oversees hazardous-material handling. Union officials fear the same thing will happen this time. Congressional aides working on the highway bill said the hazmat provisions, which include new training for railroad employees and longer retention of shipping papers, are likely to survive if the entire bill gets approved.
For workers and their employers, where the line is drawn is important.
There are some 800,000 shipments of hazardous material daily. Some 40,000 businesses are involved in transporting this material, and they employ thousands of workers who come in contact with it. Last year, there were 15,355 incidents involving materials such as poisonous gas, flammable solids and combustible liquids. There were 14 major injuries and eight deaths, according to the Transportation Department.
Unions say the law gives OSHA authority to oversee materials training, handling, registration and motor carrier safety.
According to OSHA records, most of the agency's involvement has been focused on inspections at freight terminals where the materials are moved around. Over the last decade, the safety agency has done 716 inspections at freight terminals -- not all of them related to hazardous material-related complaints. Based on those inspections, OSHA issued about 700 citations for violations of hazmat rules, such as those requiring protective equipment for employees.
Under its broadest legal authority, OSHA can go into almost any workplace. But if another federal agency, in this case the DOT, has staked out the regulatory territory, OSHA is usually preempted from acting.
"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.