Magazine article Occupational Hazards

Chemical Releases: Joint EPA/OSHA Investigations Raise Concerns

Magazine article Occupational Hazards

Chemical Releases: Joint EPA/OSHA Investigations Raise Concerns

Article excerpt

EPA and OSHA were directed to investigate significant chemical releases and issue public reports concerning their root causes.

In the Clean Air Act Amendments of 1990 (CAAA), Congress created the Chemical Safety and Hazard Investigation Board to investigate significant chemical releases and to issue public reports concerning them. In the budget appropriations process, the board was never actually funded and has remained dormant. In the CAAA, Congress also directed the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) to issue regulations aimed at preventing accidental chemical releases, specifically the Risk Management Program Rule (RMP) and the Process Safety Management Standard (PSM). These regulations overlap significantly.

In January 1995, President Clinton directed EPA and OSHA to assume some of the board's responsibilities, by investigating significant chemical releases and issuing public reports concerning their "root causes." In response, EPA and OSHA entered into a Memorandum of Understanding (MOU), which outlines broad principles for selecting and coordinating joint investigations and for issuing public reports about "root cause" findings. To date, EPA and OSHA have conducted 11 joint investigations and issued only one public report.

This article provides an overview of the board and its brief history, the key provisions of the MOU, and concerns raised by the joint investigation process and the MOU.

Chemical Safety and Hazard Investigation Board

The CAAA created the board as an independent agency with extensive power. The board has the authority to investigate and "report to the public in writing the facts, conditions, circumstances and causes of any accidental release resulting in a fatality, serious injury or substantial property damage" and to make appropriate recommendations. It also has the authority to conduct site inspections, interview witnesses, issue subpoenas, administer oaths and hold hearings.

Recognizing the potential impact of these reports, Congress limited their admissibility into evidence in litigation arising from the releases which are studied. Specifically, Congress directed that "no part of the conclusions, findings or recommendations of the board relating to any accidental release or the investigation thereof shall be admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in such report."

In September 1994, Congress appropriated $500,000 to fund the board and its members were appointed. In February 1995, as part of the "reinvention of government effort," President Clinton requested that the appropriation for the board be rescinded, reasoning that the "Board's purpose duplicated existing efforts of the Environmental Protection Agency and the Occupational Safety and Health Administration to prevent chemical accidents." On July 27, 1995, Congress approved the rescission, and the board has remained dormant.

EPA/OSHA Memorandum of Understanding

By a memorandum dated Jan. 19, 1995, the president asked EPA and OSHA to develop a program for conducting joint investigations and issuing "root cause" reports. In January 1995, EPA and OSHA began the program. EPA described it as "similar to what was envisioned" for the board. On Dec. 9, 1996, EPA and federal OSHA signed an MOU stating that the president has asked EPA and OSHA, "under their own statutory authorities, to undertake investigations to determine the root cause(s) of chemical accidents and to issue public reports containing recommendations on what government, industry and other stakeholders could do to prevent similar accidents...." The MOU does not apply to state OSHA plans, and EPA is attempting to negotiate MOUs with each of the state plan states.

The MOU establishes policy and general procedures for cooperation and coordination between EPA and federal OSHA for accident investigations and the development of joint root cause reports. …

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