Sixteen months after issuing these recommendations on reactive chemical hazards, the board also left the matter "open," indicating it still hopes to work with OSHA on resolving the dispute.
In a written statement, OSHA Administrator John Henshaw defended his agency's response to reactive chemical hazards, which relies on voluntary cooperative and education programs. "We will continue to work with chemical safety stakeholders to prevent incidents in the future. We welcome the opportunity to continue to work with the board and would consider further information they provide us."
In a Feb. 4 letter to Henshaw, Merritt wrote that CSB is "encouraged" by OSHA's voluntary efforts. OSHA participates in the Reactivity Management Roundtable, a voluntary group of stakeholders, and the agency has decided to make available educational materials such as the new Center for Chemical Process Safety's publication, Essential Practices for Managing Chemical Reactivity Hazards.
At a Feb. 5 news conference, Merritt and other board members explained the decision formally to designate the reactives recommendation as "Open-Unacceptable." When it gives up all hope a recommendation will ever be implemented, CSB can vote to call the recommendation "Closed-Unacceptable."
This is the first time CSB has labeled an OSHA action, or inaction, unacceptable, although CSB staff member Jordan Barab indicated that the board has issued a total of four "Open-Unacceptable" findings to other government agencies and a single private company.
In 2002, the board also recommended that EPA improve its data collection of reactive chemical incidents, but at the press briefing Merritt said, "We've received responses from EPA and we believe they're making good progress toward implementation of the recommendations we made." EPA has a regulation waiting at the Office of Management and Budget that would modify reporting requirements related to chemical hazards. Unlike OSHA, EPA was not asked to regulate reactive chemicals.
While board members appeared concerned about the situation, it is unclear how much pressure the CSB action will exert on OSHA.
"One of our former board members indicated that receiving a recommendation was sort of like taking a note home from the teacher to your mother," commented Merritt. "We would like to feel that our recommendations are highly considered and we will continue to investigate incidents that involve reactive chemicals."
Board member Gerald Poje declared, "It's very troubling to us to have to go and investigate another reactive hazard incident knowing that we have a serious hole in the system of safety regulations."
In a statement, AFL-CIO President John Sweeney used the occasion to accuse the Bush administration of "putting corporate interests over worker safety." While the Clinton administration began to work on revising the PSM rule to address reactive chemical hazards, in December 2001, the Bush administration removed the proposal from OSHA's regulatory agenda.
"There's no consensus that I can see around a regulatory approach," contended Dorothy Kellogg, director of safety and facilities security for the American Chemistry Council (ACC), an industry group. She said ACC is "very supportive" of OSHA's approach to work collaboratively through voluntary education and outreach programs. ACC will sign an alliance with OSHA in March.
While the federal effort to regulate reactives appears to be going nowhere, the state of New Jersey has moved to regulate these hazards. In response to the industry argument concerning the lack of consensus, Poje pointed out that "it did not take consensus in New Jersey to move forward it took the willfulness of the regulatory agency."
Although CSB is criticizing OSHA's inaction on reactive chemicals, President Bush appointed a majority of the current CSB members, including Merritt.
"I would love to believe that voluntary action is all that would be necessary," asserted Merritt. But she pointed out that U.S. history suggests it generally takes a catastrophic event to trigger new regulations to long-standing and well-recognized problems.