MEMORANDUM OF UNDERSTANDING
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
DEPARTMENT OF LABOR
FEDERAL ON SCENE COORDINATOR,
DEPARTMENT OF HOMELAND SECURITY
CONCERNING OCCUPATIONAL SAFETY AND HEALTH ISSUES RELATED TO THE DEEPWATER HORIZON OIL SPILL RESPONSE
I. PURPOSE AND BACKGROUND - The purpose of this Memorandum of Understanding is to establish procedures for consultation and coordination between the Federal On Scene Coordinator (FOSC) and Occupational Safety and Health Administration (OSHA) with respect to matters affecting the occupational safety and health of workers involved in the response to the Deepwater Horizon oil spill (the "oil spill"). OSHA and the FOSC recognize the importance of close cooperation and coordination among all agencies with responsibilities for response activities.
OSHA and U.S. Coast Guard (USCG) have a long history of working cooperatively to protect workers. As set forth in two longstanding MOUs, the agencies cooperate in determining coverage, scheduling inspections, and investigating accidents, among other issues.
This cooperation between OSHA and USCG has continued since the beginning of this oil spill. For example, OSHA, working through the Unified Area Command, has been disseminating information about necessary safety and health precautions to BP. BP is the Responsible Party under the National Contingency Plan (40 C.F.R. Part 300) (the "NCP") and the Oil Pollution Act of 1990 and is liable for all response costs and damages from the oil spill (See e.g. 33 U.S.C. 2702). OSHA has also provided this information to BP's contractors that employ the workers involved in oil spill response. OSHA has also been assuring that workers receive appropriate training and that they use proper personal protective equipment, and is taking other actions to assure overall worker heath and safety.
II. AUTHORITY - On April 22, 2010, the National Response Team was activated pursuant to the NCP and a Federal On Scene Coordinator was appointed. On or about April 29 the oil spill was declared a Spill of National Significance pursuant to the NCP and Admiral Thad Allen was appointed as the National Incident Commander. Under the NCP, all response actions must comply with OSHA's Hazardous Waste and Emergency Response Standard, 29 C.F.R. 1910.120, as well as other relevant OSHA requirements. (See NCP, 40 C.F.R. 300.150 - Worker Health and Safety).
The responsibilities of the Federal On Scene Coordinator include, without limitation, the authority to direct all response efforts and coordinate all other efforts at the scene of a discharge or release. (See e.g., 40 C.F.R. 300.120; 300.135). The National Incident Commander may assume the role of the Federal On Scene Coordinator in communicating with affected parties and the public, and coordinating federal, state, local and international resources at the national level. (See 40 C.F.R. 300.323)
The duties and responsibilities of Federal agencies are generally set forth in the NCP at 40 C.F.R. 300.175. The Department of Labor, through OSHA and the states operating plans approved under section 18 of the OSH Act, 29 U.S.C. 667, has authority to conduct safety and health inspections to assure that employees are being protected and to determine if the site is in compliance with safety and health standards and regulations promulgated under the OSH Act and its general duty clause. (See 40 C.F.R. 300.175(b)(11)). In addition, OSHA may take any other action necessary to assure that employees are properly protected, and may provide advice and consultation to the FOSC and other agencies in the NRT. Id. The NCP does not limit OSHA's existing statutory enforcement authority. (See 40 C.F.R. 300.150(e)).
III. INFORMATION SHARING - The FOSC and OSHA will share relevant information with each other, while ensuring that the exchange of such information complies with applicable law.
A. Referrals - If either the FOSC or OSHA learns of potential hazards or other conditions of concern within the other agency's responsibility or authority, it shall notify the other agency promptly. This includes information it learns of directly, in its own response activities, as well as information received from other parties, including workers, local government officials, or anyone else.
B. Enforcement - OSHA will notify the FOSC when it intends to take any enforcement action against BP, BP's contractors, or any other employer engaged in response activities. This may include action in response to imminent dangers, other serious hazards, fatalities or catastrophes, serious injuries or illnesses, or other situations where OSHA determines enforcement is necessary to protect worker safety or health.
C. Press and Public Statements - The FOSC and OSHA will notify each other about planned press releases, press conferences, and other public statements related to the occupational safety and health of workers involved in oil spill response.
D. Other Information - The FOSC and OSHA will also share any other information relevant to the subject of this MOU.
E. The Assistant Secretary or his designee and the FOSC or his designee will be responsible for the communications described in this section.
IV. EFFECTIVE DATE
This Memorandum is effective upon signature by the parties. It may be amended at any time by mutual written agreement of the agencies and may be terminated by either agency upon thirty days written notice.
V. EFFECT OF AGREEMENT
This agreement is an internal Government agreement and is not intended to confer any right upon any private person.
This agreement does not itself authorize the expenditure or reimbursement of any funds. Nothing in this agreement obligates the parties to expend appropriations or enter into any contract or other obligations.
Nothing in this Memorandum shall be deemed to alter, amend, or affect in any way the statutory or regulatory authority of the Federal On Scene Coordinator, the National Incident Commander (or any delegation of authority to these officers), the U.S. Coast Guard or OSHA.
This agreement will be executed in full compliance with the Privacy Act of 1974
Assistant Secretary for Occupational
Safety and Health
U.S. Department of Labor
JAMES WATSON, RADM, USCG
Federal On Scene Coordinator
U.S. Department of Homeland Security