INSIGHT: Industry to face new safety regulations

28 August 2008 15:55  [Source: ICIS news]

US chemicals soon to have larger regulatory burdenBy Joe Kamalick


WASHINGTON (ICIS news)--The US process industry soon may be facing yet another layer of federal regulatory obligation if Congress orders chemical safety authorities to implement an emissions and accident reporting requirement already on the books.


A new report by the Government Accountability Office (GAO) charged that the Chemical Safety & Hazard Investigation Board (CSB), set up by Congress to investigate serious chemical leaks and accidents, is not doing what legislators told it to do.


The GAO, the audit and investigative arm of Congress, said the board’s failures are in part due to inadequate staff and funding but also because CSB does not have access to reliable and comprehensive data on emissions, fires and explosions involving chemicals.


“CSB has not fully responded to [earlier] recommendations to publish a data-reporting regulation and improve the quality of its accident data,” the GAO report said.


The GAO noted that the 1990 Clean Air Act Amendments that established the CSB as an independent federal agency included “a statutory requirement to publish a regulation for receiving information from facilities on their chemical accidents”.


Despite that legal obligation, said the GAO, “the CSB has not issued the regulation, and [CSB] officials said they have no plans to do so”.


“Instead, the CSB relies primarily on the media, such as online newspapers and television, to learn about chemical accidents,” the GAO said in its report to congressional committees with responsibility for the safety board.


Indeed, the 1990 Clean Air Act Amendments do require that the board “establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the board’s investigatory jurisdiction”.


The CSB’s jurisdiction, according to the 1990 statute, includes “accidental releases resulting in a fatality, serious injury or substantial property damages”.


Furthermore, according to the statute, the board may propose rules or orders that would be issued and enforced by the Environmental Protection Agency (EPA) or the Occupational Safety and Health Administration (OSHA). The Chemical Safety Board itself has no enforcement authority.


The GAO noted that in an earlier 2004 analysis critical of the CSB, a top inspector from the Department of Homeland Security (DHS) “recommended that CSB fulfil its statutory requirement to publish a regulation for receiving information from facilities on their chemical accidents”.


“After 10 years of operation, CSB continues to operate in non-compliance with its statutory mandates,” the GAO report said.


In response to the GAO criticism, the board said that “a reporting regulation is not needed for the narrow purpose of notifying the CSB of major accidents warranting the deployment of investigators”. 


“We can and do easily learn what we need to know simply from monitoring the media” and reports from other federal agencies, the CSB added.


In fact, the 1990 Clean Air Act Amendments statute provides that emissions and accident reports submitted by industry to the National Response Center (NRC) - a sort of clearing house for all oil, chemical, radiological biological and etiological discharges - would satisfy a regulatory requirement for reporting such incidents directly to the CSB.


Not good enough, said the GAO.


“We disagree with CSB’s view that a reporting regulation is not needed,” the GAO said.


“CSB is legally required to promulgate a regulation,” the congressional investigators said, adding:  “Furthermore, such a regulation would allow CSB to obtain more accurate, complete information to meet its statutory mandate.”


Even though the CSB doesn’t think another reporting requirement and structure is needed, it is perhaps yielding to the inevitable. 


CSB told congressional investigators that the board soon will publish a “request for information” in the Federal Register, inviting chemical industry, environmental and safety sector stakeholders to offer opinions on whether a CSB accident reporting requirement is needed.


A board spokeswoman said that invitations to comment will be issued by late September.


The invitation is certain to draw a broad response from environmental groups and perhaps even state and local fire and safety agencies in favour of an accident reporting programme under the CSB.


That the CSB is inching toward a new reporting mandate under congressional prodding has triggered early alarm among some in the chemicals industry.


Bill Allmond, director of government relations for the Synthetic Organic Chemical Manufacturers Association (SOCMA), said that “we find it very difficult to see how such a rule could add anything substantive to current reporting requirements under EPA rules for reporting releases to the NRC”.


“The GAO merely points out the CSB’s statutory requirement without acknowledging existing reporting requirements that capture the same type of information that would be sought under a CSB reporting mechanism,” Allmond added.


Even so, Congress may move next year to force the CSB to implement its decade-old reporting mandate.


The 111th US Congress that will convene in January next year is widely expected to have more dominant Democrat majorities in both the House and Senate. 


Democrat leaders in the current 110th Congress have already put off to the 111th certain regulatory issues - such as a new chemical site antiterrorism law - that they hope will have a better chance of passage and perhaps the support and willing signature of a new Democrat president.


In short, Congress next year is virtually certain to be in a ramped-up regulatory mood, and a new mandate for chemical safety reporting very likely will be in the offing.


To discuss issues facing the chemical industry go to ICIS connect

By: Joe Kamalick
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