By Darius Rohani-Shukla and Beeta B. Lashkari

Last month, the Chemical Safety Board (“CSB”) published its first list of incidents that had been reported to the agency pursuant to its Accidental Release Reporting Rule.

The CSB’s Reporting Rule was published in the Federal Register on February 21, 2020, and took effect a month later, on March 23, 2020.  As we previously reported, the rule requires that owners and operators of stationary sources report accidental releases that result in a fatality, serious injury, or substantial property damage to the CSB within eight hours.  That accidental release report must indicate:

1. The name and contact information for the owner/operator;
2. The name and contact information for the person making the report;
3. The location information and facility identifier;
4. The approximate time of the accidental release;
5. A brief description of the accidental release;
6. An indication whether one or more of the following has occurred:

• • (1) Fire;
  • (2) Explosion;
  • (3) Death;
  • (4) Serious injury; or
  • (5) Property damage.

7. The name of the material(s) involved in the accidental release, the Chemical Abstract Service (CAS) number(s), or other appropriate identifiers;
8. If known, the amount of the release;
9. If known, the number of fatalities;
10. If known, the number of serious injuries;
11. Estimated property damage at or outside the stationary source; and
12. 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 persons evacuated;
  • (2) Approximate radius of the evacuation zone; and
  • (3) The type of person subject to the evacuation order (i.e., employees, members of the general public, or both).

As written, the CSB’s Reporting Rule essentially provided that the only mechanism that reportable incident data could be obtained was through the FOIA process.  However, in response to public comments that the FOIA process would be unwieldy, inefficient, and time-consuming, the CSB stated in the preamble to the final rule:

“The CSB understands commenters’ concerns about FOIA processing delays. The CSB’s Chief FOIA Officer has acknowledged the backlog of FOIA requests, and the CSB is improving its response process, including by devoting additional personnel to the task. With the adoption of this final rule, the CSB will also devote additional resources to the collection and processing of initial accidental release information. In light of this, the CSB will proactively disclose, subject to any Federal statutory prohibitions on such disclosure, initial incident information, as defined in this rule at § 1604.4, at least once per year.”

Since the rule has been in effect for over two years now, we had expected at least one prior set of data to be published by now.  However, other CSB priorities, such as dealing with a quorum of one, the backlog of open investigations, not to mention, COVID-19, likely interfered with the CSB’s goal of publishing at least once a year.

The data produced by CSB thus far is minimal.  We expected to see more detail and information about each incident, consistent with what CSB references as initial incident information.  The CSB indicated that it “would proactively disclose, subject to any Federal statutory prohibitions on such disclosure, initial incident information, as defined in [the] rule at § 1604.4, at least once per year.” (emphasis added).

Of the 12 categories of information defined in § 1604.4, the CSB has thus far provided partly responsive information about just four:

1. name of the owner/operator;
2. location information;
3. time (date) of the incident; and
4. indication of whether death, serious injury, or substantial property damage occurred.

The data set published by the CSB does NOT provide:

• a brief description of the accidental release;
• whether the release resulted in a fire or explosion;
• the number of fatalities and/or serious injuries and the estimated property damage at or outside the stationary source;
• the name of the material involved;
• the amount of the release; or
• whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.

Of the data that was provided, it encompassed 153 incidents that occurred from April 10, 2020, to May 9, 2022 (37 incidents occurred in 2020, 80 incidents occurred in 2021, and 34 incidents occurred thus far in 2022).  Notably, 24 of the 153 reported incidents resulted in at least one fatality, 90 in at least one serious injury, and 62 in substantial property damage.  In filtering by state, one-third of the incidents reported occurred in Texas or Louisiana (26 of the 153 incidents in Texas, and 27 in Louisiana).

While not quite what we expected, this data provides the first glimpse we have gotten into the number and nature of incidents being reported under the CSB’s Accidental Release Reporting Rule.