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EPA Considering NJ Model for Regulating Reactive Chemicals

On August 5 New Jersey became the first jurisdiction to add reactive chemicals to its list of substances that, when present at a facility above a specified threshold, trigger accident prevention requirements.

Now the Bush Administration is considering the New Jersey regulations as a starting point for Federal regulation of chemicals that can explode when inadvertently exposed to air or water or when mixed with certain other chemicals. These actions potentially can affect members of the converting industry and their customers.

Homeland security concerns and a report issued Sept. 24, 2002, by the US Chemical Safety & Hazard Investigation Board (CSB) have focused attention on potential gaps in coverage of reactive hazards under the Clean Air Act Risk Management Planning (RMP) rules administered by the chemical process safety management (PSM) standard of the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA).

The CSB found more than 50% of the 167 reported uncontrolled chemical reactivity incidents between January 1980 and June 2001 involved chemicals not covered by existing PSM or RMP requirements. The report concluded the RMP and PSM requirements' reliance on chemical lists, and failure to require an analysis of reactive hazards, is inadequate.

Accordingly, the CSB recommended EPA and OSHA address reactive hazards from a combination of chemicals and process-specific conditions, rather than focusing exclusively on the inherent properties of individual chemicals.

In response to the CSB report, EPA proposed revisions to RMP regulations, including reactive incidents involving “uncontrolled or runaway reactions” as an accidental release covered under the RMP regulations. The proposed change would be used to distinguish between a simple release and a reactive incident, but only for currently listed RMP substances.

The Agency is under pressure from labor unions and environmental groups threatening litigation if EPA does not act to reduce reactive hazards. So EPA is paying close attention to New Jersey's revised Toxic Catastrophe Prevention Act (TCPA) regulations as a possible blueprint for similar Federal regulation.

The new TCPA rules regulate two groups of reactive hazard substances (RHS). Group I substances inherently are reactive substances compiled from lists of reactive chemicals or chemical groups developed by the fire and emergency response agencies. Group II substances are intentional mixtures that are products, byproducts, or reactants containing the chemical groups identified in Group I.

Industry officials have warned EPA that reactive chemical regulation such as the new TCPA requirements will be extremely burdensome, particularly for small businesses. Under the revised New Jersey regulations, facilities conducting intentional reactions that include at least one Group II substance must perform complicated calculations to determine the “heat of reaction” for each intentional reaction. Once the heat of reaction is known, it must be compared against a table to determine the applicable threshold for complying with New Jersey's RMP requirements. Industry stakeholders have expressed concern that the heat of reaction standard could encompass harmless chemical reactions such as oxidization.

In addition, the New Jersey revisions contain two requirements certain to be challenged if proposed by EPA. New Jersey now requires facilities subject to the TCPA to evaluate their risk reduction options every five years to ensure the options reflect the most up to date, practicable technologies available for minimizing the risk of catastrophic accidental releases, and to implement this technology if cost-effective. Facilities must evaluate their new processes to ensure they incorporate, where feasible and cost-effective, inherently safer technologies that minimize or eliminate the threat of EHS releases by using safer chemicals, reducing chemical inventories, and improving equipment maintenance and design.

Given the potential scope of the EPA reactive hazard initiatives, the converting industry must keep a close watch during the next few months.

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.;

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