In a country with many regulatory measures, chemical companies face federal mandates from all sides. Such mandates include operational safety, increased security measures, emergency preparedness and reporting. Some of these mandates from different federal agencies are in conflict with one another. Every federal law related to hazardous materials has its own unique definition. Common terms are hazardous materials (DOT and OSHA), hazardous substance (CERCLA), listed chemical (TRI and RMP) and listed and characteristic wastes (RCRA).
The Department of Labor (through OSHA) regulates workplace safety and health and requires material safety data sheets. OSHA also regulates plant safety management of highly hazardous chemicals through its Process Safety Management Program. DOT regulates chemical transport by rail, motor carrier, pipeline and barge. The Department of Commerce oversees compliance with chemical weapons. The Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regulates the purchase, possession, storage, and transportation of explosives. The Emergency Planning and Community Right-to-know Act (EPCRA) was created to help communities plan for emergencies involving hazardous substances. EPCRA has four major provisions: one addresses emergency planning and three focus on chemical reporting.
EPA regulates off-site consequences through its Risk Management Program (RMP). In addition, EPA oversees the [Oil] Spill Prevention Control and Countermeasure Plan. Recently, the Departments of Homeland Security (DHS) and Transportation (DOT) also developed new security regulations for the rail transportation of hazardous chemicals. In the wake of 9-11, the DHS developed Chemical Anti-Terrorism Facility Standards (CFATS), requiring chemical companies review security protocols and develop site security plans. The US Coast Guard regulates most oil storage and oil spill response through the Federal Response Plan and regulates maritime facilities under the Marine Transportation Safety Act for purposes of facility and vessel inspection programs.
In light of all these regulations, perhaps it is time for a common sense approach to address overlapping and sometimes redundant regulatory mandates for chemical companies. Guidance should be provided so companies will understand this complex overlap and how it affects their own facility. For example, the DHS and EPA could collaborate on chemical safety and security issues to accomplish the same goals. One of the big reasons why this has not happened is that EPA and DHS have different approaches to regulating safety and security. For example, EPA and state officials through EPCRA are concerned primarily about incidents occurring as a result of a chemical release or spill at a chemical facility. DHS through the CFATS program is more focused on facility security measures to prevent intentional chemical releases or acts of terrorism including theft and sabotage. In some cases, security solutions create other problems. For example, installing fencing reduces the risk of theft and sabotage, but makes it more difficult for emergency responders to get into a facility and more difficult for employees to get out in the event of an incident.
Conflicting definitions and terms add to the confusion. Facility definitions vary as well as is what is regulated (plant, tank, common manifold, or property boundary). Also, the definition of “chemical release” varies. EPA and DHS have different definitions for chemical facility “tiers.” Under EPCRA, EPA allowed states to choose the tier I or tier II reporting form when documenting annual chemical facility amounts. All states have subsequently adopted the “tier II” form regardless of the size of the facility. Recently, DHS designated chemical companies by risk-based “tiers” ranging from “tier 1,” which contains the highest-risk of covered facilities, to “tier 4”, which contains the lowest-risk of covered facilities. Even the term “substance” has different definitions by agency or program. The following table illustrates some of the confusion between programs and terms.
In summary, there is a need for coordinated planning and regulatory oversight at multiple federal agencies. A coordinated approach can translate into efficiency which is likely to help with our current budget situation. Improved interagency relationships will also help when it is time to respond to a real emergency.
Author: David Willauer, Manager, Transportation & Geospatial Technologies Division