Reactive Chemicals Get More Scrutiny

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In the wake of several high-profile industrial explosions, government bodies are showing renewed interest in regulating reactive chemicals. These are chemicals that can become unstable in certain circumstances, such as through mixture or storage with incompatible substances, or exposure to excessive heat or pressure. This column briefly summarizes what to expect in the year ahead.

EPA and OSHA mandate accident prevention programs, and hold the owner or operator of a stationary source responsible for complying with specific facility regulations intended to prevent accidents. EPA has published regulations for chemical accident prevention at facilities using extremely hazardous substances and has promulgated a Risk Management Plan (RMP) rule. OSHA's Process Safety Management (PSM) standard covers reactive chemicals. It applies to processes containing more than a threshold quantity of any of 137 listed chemicals, and subjects a facility to varying regulations depending upon the type of operation, the chemicals managed on site and the amount of chemicals held in inventory. Under the Clinton Administration, OSHA prepared a significant proposed rule intended to regulate reactive chemicals more rigorously. The rule was not published, however, before President Bush was inaugurated in 2001.

Historically, EPA and OSHA have collaborated when investigating certain chemical accidents. In 1990, the independent Chemical Safety and Hazard Investigation Board (CSB) was created to investigate and determine the cause of chemical accidents and to recommend steps to prevent similar incidents. The Board has replaced joint EPA/OSHA investigations.

CSB spurs action

In September 2002, the CSB released a report identifying 92 reactive incidents since the PSM was promulgated in 1992 and calling for OSHA and EPA to improve both the PSM standard and RMP rule. Specifically, the CSB recommended that OSHA revise the PSM standard to control releases of reactive chemicals that could cause catastrophic consequences and that EPA update the RMP to cover catastrophic releases of reactive chemicals. CSB also requested that the Center for Chemical Process Safety (CCPS), which operates under the auspices of AIChE, publish comprehensive guidelines on "model" reactive-hazards-management systems.

OSHA and EPA have been diligent in responding to these recommendations. Meanwhile, CCPS, in partnership with OSHA, EPA, and several trade associations, is in the final stages of issuing a book on chemical reactivity, "Essential Practices for Managing Chemical Reactivity Hazards."

OSHA is preparing guidance, which it hopes to make available this spring, focused on single non-complex processes. The guidance is expected to be helpful to operations with such processes, smaller facilities and employers involved in storage, re-packaging, blending and reformulating. It likely will emphasize the importance of screening for reactive hazards.

OSHA also is drafting additional guidance on hazard communication, including for improving the accuracy of Material Safety Data Sheets (MSDS). In addition, OSHA expects to revise its compliance directive for the PSM standard to provide clarification where necessary with, for example, the difference between storage tanks and process tanks, and the process safety information and process hazard analysis elements of the PSM. This effort should be completed during 2005.

Finally, OSHA is enhancing its alliances with EPA, the Synthetic Organic Chemical Manufacturers Association and the American Chemistry Council. It also is looking to add other groups such as, for example, the National Association of Chemical Distributors. The goal of these alliances is to educate employers, employees and others about the best practices in handling reactive chemicals.

Where any of these collaborative outreach efforts fail, OSHA expects to rely on more traditional enforcement approaches and upon its "general duty" mandate to address reactive hazards not covered by the PSM standards.

Similarly, non-compliance with the RMP rule could result in enforcement action initiated by EPA. On July 31, 2003, that agency proposed comprehensive modifications to the rule to improve accident prevention. The rule has not yet been issued in its final form, but should appear in time for the majority of facilities to complete their five-year anniversary re-submissions by June 21, 2004.

Forecast

While new regulation is always possible, it is more likely that additional guidance and related non-regulatory collaborative measures will be OSHA's and EPA's preferred response to the CSB's concerns with reactive chemicals. Watch for new guidance, a final EPA rule and other developments on these important issues in 2004.

Lynn Bergeson is a founding shareholder of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm. The views expressed herein are solely those of the author.

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