Takeaways

The proposed rule requires reports of any accidental releases “resulting in a fatality, serious injury or substantial property damage.”
Under the proposed rule, a report to the National Response Center (NRC) may satisfy CSB’s new reporting requirement.
Under the proposed rule, if no report to NRC is made, a report must be submitted to CSB within four hours of the release.

Owners and operators of stationary sources will have an additional accidental release reporting requirement if the U.S. Chemical Safety Board’s proposed rule takes effect as drafted. Although CSB’s enabling legislation was enacted in 1990, CSB did not begin operating until 1998. Since that time, CSB had failed to promulgate an accidental release reporting requirement as envisioned in the 1990 enabling legislation. On February 4, 2019, the U.S. District Court for the District of Columbia ordered CSB to issue an accidental release reporting rule within twelve months. [See Air Alliance of Houston, et al. v. U.S. Chemical Safety and Hazard Investigation Board, 365 F. Supp. 3d 118 (Feb. 4, 2019).] On February 5, 2020, CSB did so. The proposed rule (proposed 40 CFR Part 1604), which is now out for public comment, is designed to require an owner or operator to promptly notify CSB of any accidental release within CSB’s investigatory jurisdiction and, in turn, enable CSB to assess its jurisdiction and make deployment decisions.

The Proposed Rule

The proposed rule requires reports of any accidental release “resulting in a fatality, serious injury or substantial property damages.” As defined, an accidental release is “an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.” [Adopted verbatim from 42 U.S.C. 7412(r)(2)(A).] Notably, CSB makes it clear the proposed rule’s ambit is broad, to include essentially any substance that “may cause death, serious injury, or substantial property damages.” For property damage, the threshold is equal to or greater than $1,000,000.

Required Reporting

Under the proposed rule, the following information must be reported to CSB by either one of two alternatives. First, if a report is first made to the National Response Center (NRC), an owner or operator can satisfy the proposed reporting rule by immediately providing CSB with the NRC report identification number. The second alternative requires an owner or operator to submit a report directly to CSB within four hours of the accidental release and must include the information listed in proposed Part 1604.4:

(a) The name of, and contact information for, the owner/operator;

(b) The name of, and contact information for, the person making the report;

(c) The location information and facility identifier;

(d) The approximate time of the accidental release;

(e) A brief description of the accidental release;

(f) An indication whether one or more of the following has occurred:

(1) Fire;

(2) Explosion;

(3) Death;

(4) Serious injury; or

(5) Property damage;

(g) The name of the material(s) involved in the accidental release, the Chemical Abstract Service (CAS) number(s), or other appropriate identifiers;

(h) If known, the amount of the release;

(i) If known, the number of fatalities;

(j) If known, the number of serious injuries;

(k) Estimated property damage at or outside the stationary source;

(l) Whether the accidental release has resulted in an evacuation order impacting members of the general public and others, and, if known:

(1) The number of people evacuated;

(2) Approximate radius of the evacuation zone; and

(3) The type of individuals subject to the evacuation order (i.e., employees, members of the general public, or both).

CSB estimates about 200 incidents per year should be reported under the proposed rule. A report is estimated to take approximately 15 minutes to submit, either by telephone or email.

An owner or operator can, without penalty, revise or update information reported to NRC or CSB; however, the failure to report an accidental release may result in administrative penalties, civil action, or criminal action. Finally, accidental release records reported to CSB, under the proposed rule, may be available in accordance with 40 CFR Part 1601, CSB’s procedures for the disclosure of records under the Freedom of Information Act.

For more information, or to discuss the implications of the proposed rule, please contact us.