Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Process Safety Management of Highly Hazardous Chemicals;Explosives and Blasting Agents|
| Title:||Section 1 - I. Background|
Releases of toxic, reactive or flammable liquids and gases in processes involving highly hazardous chemicals have been reported for many years. Incidents continue to occur in a variety of industries which use a variety of highly hazardous chemicals which may be toxic, reactive, flammable, or explosive or exhibit a combination of these attributes. (See for example, Ex. 2: 2, 4, 12, 13; Ex. 11: 2, 5, 6, 22, 28, 30, 31, 33, 41, 50, 63, 84, 94, 99, 120-136, 163; Ex. 15B, C; Ex. 53A; Ex. 114; Ex. 118; Tr. 2070, 2230, 2441-42, 2451, 2502.) Regardless of the industry that uses these highly hazardous chemicals, there exists a potential for an accidental release if a highly hazardous chemical is not properly controlled. This in turn presents the potential for a devastating incident. Recent major incidents include the 1984 Bhopal incident resulting in more than 2,000 deaths; the October 1989 Phillips 66 Chemical Plant incident resulting in 24 deaths and 132 injuries; the July 1990 Arco Chemical incident resulting in 17 deaths; the July 1990 BASF incident resulting in 2 deaths and 41 injuries; and the May 1991 IMC incident resulting in 8 deaths and 128 injuries. While these major incidents involving highly hazardous chemicals have drawn national attention to the potential for major catastrophes, the record is replete with information concerning many other releases of highly hazardous chemicals (as referenced above). These releases continue to pose a significant threat to employees. The continuing occurrence of incidents has provided impetus, internationally and nationally, for authorities to develop or consider the development of legislation and regulations directed toward eliminating or minimizing the potential for such events.
International efforts include the development of the Seveso Directive by the European Economic Community after several large scale incidents occurred in the 1970's, including Flixborough and Seveso. The Directive addresses the major accident hazards of certain industrial activities, lists the hazardous materials of concern and is directed toward controlling those activities that could give rise to major accidents in an effort to protect the environment and the safety and health of persons (Ex. 11-53).
Subsequent international efforts include the development of guidelines for identifying, analyzing and controlling major hazard installations in developing countries and a hazards assessment manual which provides measures to control major hazard accidents developed by the World Bank (Ex. 2: 2); the development of the Code of Practice on the Prevention of Major Accident Hazards by the International Labour Organization (Ex. 11: 154); and the special conferences held by the Organization of Economic and Cooperative Development (Ex. 11: 153) to consider the catastrophic potential of accidents involving hazardous substances and the means to prevent their occurrence and mitigate their impact.
In the United States, Congress, Federal agencies, state governments, industry, unions and other interested groups have become actively concerned and involved with protecting employees, the public and the environment from major chemical accidents involving highly hazardous chemicals.
In 1985, the Environmental Protection Agency (EPA) in response to the potential for catastrophic releases initiated a program to encourage community planning and preparation relative to serious hazardous materials releases (Ex. 2: 5). In 1986, Congress passed the framework for emergency planning efforts through Title III of the Superfund Amendments and Reauthorization Act (SARA), also known as the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001 et seq.). SARA encourages and supports states and local communities in efforts to address the problems of chemical releases. Under section 302 of SARA, 42 U.S.C. 11002, EPA was required to publish a list of extremely hazardous substances with threshold planning quantities which would trigger planning in states and local communities (52 FR 13378).
After the 1984 Bhopal, India incident involving an accidental release of methyl isocyanate which resulted in more than 2000 deaths, OSHA determined that it was necessary to immediately investigate U.S. producers and users of methyl isocyanate. This investigation indicated that while the chemical industry is subject to OSHA's general industry standards, these standards do not presently contain specific coverage for chemical industry process hazards, nor do they specifically address employee protection from large releases of hazardous chemicals.
OSHA standards do exist for employee exposure to certain specific toxic substances (see subpart Z of part 1910), and hazardous chemicals are covered generally by other OSHA standards such as the Hazard Communication Standard, 1910.1200. While these standards do address hazardous chemicals, they focus on routine or daily exposures and while in many cases they also address emergencies such as spills, OSHA believes that they do not address the precautions necessary to prevent large accidental releases that could result in catastrophes.
Additionally, OSHA has certain standards contained in Subpart H of 29 CFR Part 1910, Hazardous Materials, concerning flammable liquids, compressed and liquified petroleum gases, explosives and fireworks. The flammable liquids and compressed and liquified petroleum gas standards emphasize equipment specification and the flammability of materials and do not thoroughly address other hazards of materials such as toxicity, and the standard concerning explosives and fireworks does not address the hazards involved during their manufacture. Beyond these standards, OSHA must depend on section 5(a)(1) of the Occupational Safety and Health Act, the general duty clause, to protect employees from other hazardous situations arising from the use of highly hazardous chemicals in certain industrial processes and must use national consensus standards and industry standards to support these general duty clause citations.
The need to focus on safety and health in the chemical industry was reinforced in August 1985. A serious release of highly hazardous chemicals (aldicarb oxime and methyl chloride) occurred at a plant in Institute, West Virginia. While no deaths occurred, 135 persons were injured (Ex. 2: 7). The experience of investigating this release indicated to OSHA that there was a need to look beyond existing standards and led OSHA to develop a demonstration program of special inspections in a small segment of the chemical industry (Ex. 2: 7). The purpose of the program was to examine industry practices for the prevention of disastrous releases and the mitigation of the effects of releases that do occur, and to consider ways in which OSHA could best protect employees in the industry from these hazards. Based on the results of the program, OSHA determined that chemical plant inspections need a comprehensive inspection approach which includes plant physical conditions and management systems.
Since this program was initiated, OSHA has issued a series of inspection directives, updated by growing experience and knowledge, that address system safety evaluations of operations with catastrophic potential. One important change in the successive directives was the expansion of the scope of facilities to be inspected. Inspections were to be conducted in industries beyond chemical manufacturing because potentially hazardous chemical releases are not limited to chemical manufacturing and similar precautions should be implemented in operations in which hazardous chemicals are used, mixed, stored or otherwise handled (Ex. 2: 8).
Several states have developed legislation intended to prevent catastrophic events in their communities by requiring employers to take steps to control the highly hazardous chemicals in the workplace (e.g., Delaware, California, New Jersey (Ex. 2: 9)).
Industry has also taken measures aimed at improving the protection of public health and safety by improving chemical process safety to prevent releases. The Chemical Manufacturers Association (CMA) developed the Chemical Awareness and Emergency Response Program to foster cooperation, knowledge and response within communities (Ex. 11: 23, 24; Ex. 3: 48). Additionally CMA produced a report on process safety management, "Process Safety Management, (Control of Acute Hazards)," in order to increase knowledge among CMA members about systematic approaches to process safety analysis (Ex. 11: 25).
In 1985 a professional organization involved with process safety and loss control, the American Institute of Chemical Engineers, formed a separate branch, the Center for Chemical Process Safety (the Center). The Center's charter is to develop and disseminate technical information to be used in the prevention of major chemical accidents (Ex. 11: 16, 17, 18). The Center has become well known for its process safety management guidance publications (see Appendix D).
Also an industry consulting group, the Organization Resources Counselors (ORC), and an industry trade association, the American Petroleum Institute (API), have developed recommended practices to address the protection of employees and the public through the prevention or mitigation of the effects of dangerous chemical releases. The ORC recommended practices (Ex. 2: 10) are discussed later in this notice. In 1990 API published its Recommended Practice 750, Management of Process Hazards (Ex. 2: 11), "to provide a more structured and formal approach to existing practices and to ensure a comprehensive approach to process safety" (Ex. 3: 106).
Unions representing employees immediately exposed to danger from processes using highly hazardous chemicals have demonstrated a great deal of interest and activity in controlling major chemical accidents. For example, the International Confederation of Free Trade Unions and the International Federation of Chemical, Energy and General Workers' Unions issued a special report on the Bhopal, India accident (Ex. 2: 12). Additionally the United Steelworkers of America investigated and issued a special report on the 1988 PEPCON plant oxidizer accident in Henderson, Nevada (ammonium perchlorate explosion, two deaths and 350 injuries (Ex. 2: 13)). Further, unions including the United Steelworkers of America, the International Chemical Workers, and the Oil, Chemical and Atomic Workers, have undertaken large-scale efforts to train and educate their members who work in the petrochemical industry (e.g., Ex. 11: 2, Tr. 2262-63, 2265).
OSHA believed that available evidence supported the need for a standard and that adequate data and information existed upon which a standard could be based. Accordingly, on July 17, 1990, OSHA published in the FEDERAL REGISTER (55 FR 29150) a proposed standard containing requirements for the management of hazards associated with processes using highly hazardous chemicals in order to help assure that workers have a safe and healthful workplace.
OSHA's proposed rule emphasized the management of hazards associated with highly hazardous chemicals. The application of management controls to processes involving highly hazardous chemicals was recommended to OSHA by the Organization Resources Counselors (ORC). ORC (Ex. 2: 14) observed:
[W]hen OSHA issued its final report on the Special Emphasis Program for the Chemical Industry (Chem SEP), among its findings were that "specification standards * * * will not * * * ensure safety in the chemical industry * * * [because such standards] tend to freeze technology and may minimize rather than maximize employers safety efforts." The Chem SEP report recommended a new approach to the identification and prevention of potentially catastrophic situations. This approach would involve "performance-oriented standards * * * to address the overall management of chemical production and handling systems."
The recommendations it contains are a systematic approach to chemical process hazards management which, when implemented, will ensure that the means for preventing catastrophic release, fire, and explosion are understood, and that the necessary preventive measures and lines of defense are installed and maintained.
The application of management controls to processes involving highly hazardous chemicals was also supported by other interested groups (Ex. 2: 11; Ex. 11: 23, 24).
The OSHA proposed standard established a comprehensive management program; a holistic approach that integrated technologies, procedures, and management practices. The proposal contains provisions addressing process safety information, process hazard analysis, operating procedures, training, contractors, pre-startup safety reviews, mechanical integrity, hot work permits, management of change, incident investigations, emergency planning and response, and compliance safety audits (Ex. 1).
The notice of proposed rulemaking invited comment on any aspect of the proposed standard for process safety management of highly hazardous chemicals. Additionally comment was invited on a series of issues concerning the requirements and appendices contained in the proposed standard which OSHA believed needed special emphasis. Specific questions were raised on the application of the standard; process hazard analyses; phase-in periods; team composition; training; contractors; critical equipment; drills; and notification. Finally, the notice announced the scheduling of a hearing to begin on November 27, 1990, in Washington, D.C.
The Oil, Chemical and Atomic Workers union requested that OSHA hold a regional hearing in Houston, Texas (Ex. 3: 13). OSHA agreed that the second hearing would be useful and on November 1, 1990, OSHA published a FEDERAL REGISTER notice (55 FR 46074) scheduling a second hearing to begin on February 26, 1991, in Houston, Texas; enumerating additional issues; and extending the written comment period until January 22, 1991. The additional issues in the hearing notice concerned a broader permit system; aggregation of threshold quantities of covered chemicals; workplace fuel consumption; and flammable liquid storage.
The hearings on the proposed standard for process safety management were held in Washington, D.C. from November 27 through December 4, 1990, and in Houston, Texas from February 26 through March 7, 1991. The Administrative Law Judge presiding at the hearings allowed hearing participants to submit post-hearing comments by May 6, 1991, and post-hearing briefs by June 5, 1991.
Approximately four months after the publication of OSHA's proposed standard for process safety management of highly hazardous chemicals, the Clean Air Act Amendments (the CAAA) were enacted into law (November 15, 1990). The CAAA requires in section 304 that the Secretary of Labor, in coordination with the Administrator of the Environmental Protection Agency, promulgate, pursuant to the Occupational Safety and Health Act of 1970, a chemical process safety standard to prevent accidental releases of chemicals which could pose a threat to employees. The CAAA require that the standard include the development of a list of highly hazardous chemicals which include toxic, flammable, highly reactive and explosive substances. The CAAA specified the minimum elements which must be covered by the standard. The OSHA standard must require employers to:
(1) Develop and maintain written safety information identifying workplace chemical and process hazards, equipment used in the processes, and technology used in the processes;
(2) Perform a workplace hazard assessment, including, as appropriate, identification of potential sources of accidental releases, an identification of any previous release within the facility which had a likely potential for catastrophic consequences in the workplace, estimation of workplace effects of a range of releases, estimation of the health and safety effects of such range on employees;
(3) Consult with employees and their representatives on the development and conduct of hazard assessments and the development of chemical accident prevention plans and provide access to these and other records required under the standard;
(4) Establish a system to respond to the workplace hazard assessment findings, which shall address prevention, mitigation, and emergency responses;
(5) Periodically review the workplace hazard assessment and response system;
(6) Develop and implement written operating procedures for the chemical process including procedures for each operating phase, operating limitations, and safety and health considerations;
(7) Provide written safety and operating information to employees and train employees in operating procedures, emphasizing hazards and safe practices;
(8) Ensure contractors and contract employees are provided appropriate information and training;
(9) Train and educate employees and contractors in emergency response in a manner as comprehensive and effective as that required by the regulation promulgated pursuant to section 126(d) of the Superfund Amendments and Reauthorization Act;
(10) Establish a quality assurance program to ensure that initial process related equipment, maintenance materials, and spare parts are fabricated and installed consistent with design specifications;
(11) Establish maintenance systems for critical process related equipment including written procedures, employee training, appropriate inspections, and testing of such equipment to ensure ongoing mechanical integrity;
(12) Conduct pre-start-up safety reviews of all newly installed or modified equipment;
(13) Establish and implement written procedures to manage change to process chemicals, technology, equipment and facilities; and
(14) Investigate every incident which results in or could have resulted in a major accident in the workplace, with any findings to be reviewed by operating personnel and modifications made if appropriate.
Also under the CAAA, the Environmental Protection Agency has specified duties relative to the prevention of accidental releases (see section 301(r)). Generally EPA is required to develop a list of chemicals and a Risk Management Plan.
OSHA received more than 175 comments in response to the notice of proposed rulemaking. In addition to these comments, the hearings resulted in almost 4000 pages of testimony and almost 60 post-hearing comments and briefs.
Shortly after the catastrophic Phillips 66 Company's Houston Chemical Complex incident, OSHA asked the John Gray Institute of Lamar University to conduct a study of safety and health issues as they relate to contract work in the petrochemical industry. The issue of the role of contractors in the petrochemical industry surfaced since a contractor had been working in the vicinity of the Phillips' release. Additionally, OSHA's experience indicated that a significant number of companies were using contractors to perform work at their plants. The Agency determined additional information was needed on contractors since it wanted to assure that safety issues surrounding contractor employees who are exposed or may expose site employees to potentially catastrophic events are thoroughly addressed in the process safety management standard. Upon the completion of the report, OSHA decided to give interested persons an opportunity to comment on the report and, therefore, reopened the record to receive public comment on the report and to reexamine the provisions concerning contractors. On September 24, 1991, OSHA published a notice in the FEDERAL REGISTER announcing the availability of the John Gray report and requesting public comment (56 FR 48133). OSHA received more than 300 requests for the John Gray Institute report. The comment period ended on October 24, 1991, and OSHA received 37 comments in response to the notice. The Administrative Law Judge certified the public record for the proposed rule to the Assistant Secretary of Labor for Occupational Safety and Health on November 29, 1991.
The record for this rulemaking is extensive and OSHA appreciates the time and effort expended by interested parties to ensure that as much information as possible was available to the Agency for purposes of making decisions on the final standard. In analyzing the record and preparing this final document, OSHA has carefully reviewed all of the information received, and has considered the concerns expressed by the parties participating in this rulemaking and has carefully examined the requirements of the Clean Air Act Amendments in order to assure that the final standard reflects its intent.
Regulations (Preambles to Final Rules) - Table of Contents|