Back to Basics is a weekly feature that highlights important but possibly overlooked information that any EHS professional should know. This week, we examine chemical regulations.
Depending on your industry, you may have to deal with one or more federal agencies that regulate chemicals in commerce.
A variety of federal regulations apply to the production, sale, distribution, transportation, storage, use, and disposal of chemicals.
The Departments of Labor (DOL) and Transportation (DOT) and the Environmental Protection Agency (EPA) all regulate various aspects of producing, transporting, using, and disposing of hazardous substances. U.S. agencies also try to ensure those domestic regulations conform to international agreements or standards.
Even nongovernmental industry groups get involved. The National Fire Protection Association (NFPA) has developed consensus standards for safely storing and handling chemicals and alerting emergency responders to chemical hazards at a site.
An outline of the regulatory scheme for chemicals includes:
- The EPA, which regulates new chemicals and new uses of chemicals under the Toxic Substances Control Act (TSCA) and regulates the distribution, sale, and use of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
- The United Nations’ UN Recommendations on the Transport of Dangerous Goods, referred to as the “Orange Book” for its orange cover, is a model regulation of standards for containers, packages, and placards used for hazardous materials transportation.
- Hazardous materials transportation in the United States is regulated by the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) under the Hazardous Materials Transportation Act of 1975 (HMTA).
- The UN’s Globally Harmonized System of Classification and Labelling of Chemicals (GHS), referred to as the “Purple Book” for its purple cover, is a model regulation for chemical testing, hazard classification, and hazard communication.
- OSHA’s hazard communication standard (29 Code of Federal Regulations (CFR) §1910.1200) regulates chemical safety in the workplace, incorporating many elements of the GHS.
- The Occupational Safety and Health Administration’s (OSHA) process safety management (PSM) standard sets out industry requirements for preventing or minimizing catastrophic releases of chemicals that apply across industries. Requirements under the PSM standard include performing a process hazard analysis to examine what can go wrong and evaluating possible safeguards, coordinating with contractors, planning for emergencies, and training employees.
- OSHA has set permissible exposure limits (PELs) for many toxic and hazardous substances such as asbestos, benzene, cadmium, and formaldehyde in 29 CFR Subpart Z.
- There are far more chemicals without PELs, whereby a “control banding” approach is used to address the hazards of substances without any established occupational exposure limits.
- Hazardous waste disposal is regulated by the EPA under the Resource Conservation and Recovery Act (RCRA), but OSHA also regulates the health and safety of workers through its Hazardous Waste Operations and Emergency Response (HAZWOPER) standard (§1910.120).
- The NFPA developed a standard (NFPA 704) for labeling containers, tanks, and facilities to alert firefighters and other first responders to fire, health, and other hazards.
Chemical Safety Board
Things sometimes go wrong. The U.S. Chemical Safety and Hazard Investigation Board (CSB) investigates chemical accidents in the same way the National Transportation Safety Board investigates accidents in air, highway, rail, and vessel transportation and transit.
The CSB doesn’t issue any citations or impose any penalties. A CSB investigation attempts to identify root causes and contributing factors in chemical accidents, then makes recommendations for companies and government agencies.
You can learn valuable lessons from the CSB’s investigation reports and the board’s recommendations. The CSB often expects industry participants to learn lessons from the board’s final reports. You can limit a list of CSB recommendations by industry or incident type, such as chemical manufacturing, oil and gas, release, or reactive incident.
In the first half of 2023, the CSB closed investigations of several incidents and issued final reports, including those for:
- A fatal incident on December 8, 2020, at Optima Belle LLC in Belle, West Virginia. During Optima Belle’s production of a sanitizing compound, a dryer at the facility that was removing water from the compound exploded, resulting in an employee’s death and leading to significant property damage and a shelter-in-place order for the neighboring community. Safety issues identified during the investigation included process knowledge management, thermal hazard assessment, equipment selection and design, and arrangements for outsourcing chemical processes.
- A 2019 tank farm fire at the Intercontinental Terminals Company, LLC (ITC), bulk liquid storage terminal in Deer Park, Texas. The fire caused property damage, impacted the environment, and led to the issuance of several shelter-in-place orders that disrupted a local community. Safety issues identified in the report included pump mechanical integrity, flammable gas detection systems, remotely operated emergency isolation valves, and tank farm design.
- The 2020 propylene release and explosion at the Watson Grinding facility in Houston, Texas, that fatally injured two. Safety issues identified in the final report included the lack of a comprehensive PSM program to manage the risks of its thermal spray coating operations and an ineffective emergency response plan.
- A hydrogen chloride (HCl) release at the Wacker Polysilicon North American facility in Charleston, Tennessee, in which a worker was fatally injured. Safety issues identified by board investigators included a lack of written procedures for the contractors, relying on a piping manufacturers’ equipment manual, a lack of lockout/tagout procedures, not treating torquing operations on equipment containing hazardous chemicals as an activity that required isolation, a lack of procedures for evaluating simultaneous operations and evaluation of risk to the other contractors, and not providing workers sufficient means of egress.
The CSB has released plans for closing several other investigations this year.
While most recommendations in CSB reports are for companies or industry groups, the board also makes recommendations for regulatory changes at the EPA and OSHA. This spring, the CSB reiterated existing recommendations for the EPA and OSHA to revise their regulations for reactive chemical hazards. The board has 13 open recommendations for OSHA.
Frequently cited OSHA standard: Hazard communication
The OSHA chemical safety regulation that’s most often cited is the hazard communication standard, the agency’s second most frequently cited standard after its construction industry fall protection standard. OSHA cited 2,424 hazard communication violations in fiscal year (FY) 2022.
Industries most frequently cited for hazard communication violations include accommodation and food services, construction, manufacturing, waste management and remediation services, and the wholesale trade. However, the workplaces covered by the standard expanded during the pandemic as more employers handled, stored, and used disinfectants.
OSHA penalties for chemical safety violations can be quite hefty.
Last fall, OSHA cited a Pennsylvania-based metal coatings manufacturer for 5 willful, 15 serious, and 1 other-than-serious violation at its Millvale, New Jersey, facility and sought $573,681 in proposed penalties. Citations for willful violations included respirator, written hazard communication program, safety data sheet (SDS), fall protection, and chemical hazard violations. According to the agency, the employer failed to develop and implement a written hazard communication program, maintain SDSs on-site, and train employees on chemical hazards.
The agency cited an El Paso, Texas, jewelry metal-plating finisher for failing to protect employees working with dangerous acids and other chemicals from potentially permanent eye injuries and issued fines totaling $292,693. The agency found the company failed to implement a written hazard communication program, provide required eyewash stations or showers, and establish and implement a written respiratory protection program.
OSHA issued updated inspection procedures for the hazard communication standard in 2015. OSHA compliance safety and health officers (CSHOs) may cite you for the missing elements of a hazard communication program—containers without chemical labels, missing SDSs for chemicals in the workplace, training lapses—along with citations for the lack of a written program.
Both host employers and staffing agencies may be cited if temporary workers aren’t trained on chemical hazards and labels or if they can’t access SDSs for chemicals in the workplace.
During an inspection, CSHOs will review the written program, confirming that the program includes a complete inventory of all hazardous substances, methods for informing employees of hazards encountered in nonroutine tasks and the hazards of substances in unlabeled pipes, and methods for informing other employers’ employees at multiemployer worksites, as well as ensuring all employees can and know how to access the program.
Inspectors will also review the description of the labeling system in the written program and any alternatives used for labeling containers in the workplace. You must designate a person responsible for labeling containers stored in or shipped out of the workplace. Inspectors will check your procedures for reviewing and updating labels in the workplace.
An OSHA inspector will also check that you have assigned responsibility to someone for your SDS collection. A CSHO will want to know how data sheets are maintained:
- Are print copies stored in notebooks in work areas or in a pickup truck at a jobsite?
- Are they accessed via telefax or retrieved electronically?
- Do you have backup systems in the event that electronic equipment fails?
- How do employees and contractors access SDSs?
- What are your procedures when an SDS isn’t received with its initial shipment or if you suspect an SDS isn’t current or appropriate?
- How do you determine if the SDSs you have are current?
If you don’t receive an SDS with a shipment, your local OSHA area office may be able to help you obtain one.
Inspectors will compare your collection of SDSs against the chemical inventory in your written hazard communication program. They will also check that your collection of SDSs is current.
An OSHA inspector will also interview employees and supervisors during an inspection to evaluate your compliance with the standard’s training requirements. CSHOs use interviews to determine whether workers understand the hazards of chemicals in their workplace.
Employees and their supervisors must be aware of the hazards they are exposed to and understand how to read container labels; how to find, read, and understand SDSs; and know what precautions to take when exposed to hazardous substances.
OSHA inspectors will try to determine whether there is a training program and whether employees are trained before their first assignment and trained again when new substances are introduced into the workplace. They will also check that employees have received training on your in-house labeling system if you have one.
Hazard communication is an ongoing responsibility, not a “check-the-box” compliance issue. Your written program is the cornerstone of your compliance; it needs to cover how you will handle labels and other warnings, SDSs, and employee information and training. During an inspection, CSHOs will look for a written hazard communication program, container labels, the availability of SDSs, and the effectiveness of your training program.