Reactive Chemical Hazards: As New Jersey Goes?

Earlier this month, New Jersey's Department of Environmental Protection (DEP) added reactive chemicals to the list of extraordinarily hazardous substances that trigger risk management planning requirements under the state's Toxic Catastrophe Prevention Act (TCPS) program.

The controversial move by New Jersey, where there have been two serious explosions caused by runaway reactions in the past eight years, comes nearly one year after the U.S. Chemical Safety Board (CSB) recommended that OSHA regulated reactive chemicals. The board has also called on EPA to monitor reactive hazards.

Neither OSHA nor EPA has made a decision on the CSB proposal, but the board appears to hope the New Jersey decision will help pave the way for future action at the federal level. In a statement, CSB Chair Carolyn Merritt commended the "life-saving action being taken in New Jersey," adding that the board would like to see action taken on the federal level as well.

The New Jersey regulations will require companies handling reactive chemicals to prepare accidental release prevention plans and examine safer technologies in order to prevent runaway reactions.

A special CSB hazard investigation revealed that over the past 20 years, there have been at least 167 reactive chemical incidents in the United States, causing 108 deaths, many serious injuries and billions of dollars in damages.

One of the factors delaying a federal response to the problem is the difficulty of figuring out how to regulate reactive chemistry hazards. At a recent roundtable on the problem, jointly sponsored by OSHA, CSB and EPA, experts said simply drawing up a list of supposedly 'reactive chemicals' would be ineffective, because many runaway reactions result from the combination of two or more otherwise harmless chemicals.

Sam Wolfe, assistant commissioner for DEP explained that New Jersey has avoided adopting a simple-minded list methodology.

"We've got a two-pronged approach in our rule," said Wolfe. One part is based on the list of hazards for emergency response prepared by the National Fire Protection Association (NFNPA).

The New Jersey regulation covers all the chemicals NFPA rates highest for risk.

"Our second prong relies on the scientific literature and identifies functional groups of chemicals that when mixed can be highly reactive," said Wolfe.

CSB member Gerald Poje said he testified at an open public forum held to consider the New Jersey regulations. "I congratulated them for moving forward in an open public process to re-adopt TCPA rules to more fully cover reactive chemical hazards using objective criteria."

Poje added that he believes New Jersey's experience will be "an important source of information" for OSHA and EPA about how to proceed to address reactive chemical hazards.

Business groups in New Jersey have opposed both the new regulation and what they called inappropriate CSB lobbying efforts in the Garden State.

"I don't think CSB has the statutory authority to lobby in New Jersey," charged Hal Bozarth, executive director of the New Jersey Chemistry Council (NJCC). "They're acting like an advocacy group and that's not in their charter."

Bozarth said NJCC is considering a legal challenge to the new regulations, both on procedural and substantive grounds.

"We don't believe DEP has the regulatory authority to approve this regulation without new legislation," he argued. "We operate safe plants, and companies will have to spend thousands of dollars to determine whether they're covered or not by the new rules."

It is no accident that New Jersey has decided not to wait for federal action on reactive chemical hazards. One of the worst runaway reactions in U.S. history took place in 1995 in Lodi, N.J., a devastating explosion that killed many, destroyed surrounding businesses and required 900 emergency responders.

More recently, a 1998 incident in Morton, N.J. injured nine and released chemicals throughout the near-by neighborhood.

Bozarth downplayed the significance of the two incidents. "We haven't seen a lot of experience that there is crying need for these new rules," he asserted. "The Napp and Morton incidents happened a long time ago."

Wolfe explained why it has taken New Jersey so long to address reactive chemical hazards: the previous Republican governor of the state, Christie Todd Whitman, opposed new regulations. The new governor, James McGreevey, D, is less averse to government action.

Ironically, Whitman, who was governor when both the Napp and Morton incidents occurred, left her post in 2001 when named by President Bush to head EPA.

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