By Beeta Lashkari, Eric J. Conn, and Micah Smith
Earlier this month, on September 1, 2022, the U.S. Chemical Safety Board (CSB) announced the release of a new guidance document about the agency’s still-relatively new Accidental Release Reporting Rule. The Accidental Release Reporting Rule, which went into effect in March 2020, requires owners and operators of stationary sources to report accidental releases that result in a fatality, a serious injury, or substantial property damage to the CSB within eight hours. Just a few months ago, the CSB published its first list of incidents that had been reported to the agency pursuant to the rule.
Of the new guidance document, CSB Interim Executive Steve Owens said:
“Our goal is to make sure that owners and operators report chemical releases to the CSB as required by law. While many companies already have been complying with the rule and submitting their required reports, this guidance should help resolve any uncertainties about the reporting requirement. If someone is unsure about what to do, they should report, rather than risk violating the rule.”
The new guidance has been a long time coming. Indeed, the agency alluded to issuing guidance like this in the February 2020 preamble to the final rule. Responding to various comments submitted during the rulemaking process, the CSB stated, for example, “[t]o the extent the commenter has a question or seeks clarification, the CSB may address the issue in guidance documents once the rule is final[,]” “[t]he CSB may address the hypothetical in a future guidance document[,]” “[t]he CSB can use [its one-year enforcement] grace period to establish additional explanatory guidance to owner/operators if that proves necessary[,]” “[i]f needed, the CSB can issue guidance information to ensure that there is no confusion[,]” and “[t]he CSB intends to issue compliance guidance periodically and welcomes comments that address unusual circumstances.” In the intervening 2½ years, the CSB has received many questions about the final rule, including quite a few from us, which form the basis for this question-and-answer format guidance.
As a disclaimer, the CSB provides that:
“[t]he statements in this [guidance] document are intended solely as guidance to help owners and operators of stationary sources and other stakeholders understand and comply with the CSB’s Accidental Release Reporting Rule, 40 C.F.R. Part 1604. The guidance is not a substitute for reading the rule itself and taking the time to understand the requirements of the rule as it applies to your facility, and any accompanying responsibilities that might arise to make a required report under the rule, following an accidental release.”
Before getting into specific Q&As, the CSB offers some general guidance, including:
- “Key to the analysis of any accidental release is the reality that the CSB only has jurisdiction to investigate accidental releases of hazardous substances into the ambient air from a stationary source that result in a fatality, serious injury, or substantial property damage. Typically, such accidental releases will result from the production, processing, handling, or storage of chemical substances. Without these key circumstances present, the CSB lacks jurisdiction to investigate.”
- “Complete information is the goal, but absolute perfection is not a requirement. Hence, the rule allows for “safe harbor” reporting within 30 days following the incident so that owners/operators can update their submissions with more accurate information once it is determined that a mistake or omission was made during the initial accidental release reporting. This “safe harbor” also applies to newly developed information or information that was not otherwise available by the time the owner/operator made its report to the CSB.” (emphasis added).
- The CSB repeats several times: “There is no sanction or enforcement action associated with reporting an accidental release, which in retrospect, did not have to be reported. The opposite, however, is not true. Failure to report an accidental release when required by this rule could lead to an enforcement action brought by the EPA.”
- Although employers may be wary about overreporting because that might lead the CSB to initiate an investigation into an incident which in hindsight was not required to be reported, the CSB states, “It bears noting that just because an accidental release must be reported under this rule, it does not necessarily mean the CSB will deploy a team to investigate the accidental release. The CSB makes deployment decisions based on a variety of factors.”
The guidance document is 30-pages long and addresses approx. 45 questions, including some very specific scenarios and hypotheticals. Below are the six Q&As that we found to be the most notable:
- “I understand that “substantial property damages” of over $1,000,000 (even without a fatality or serious injury) makes an accidental release reportable under the CSB’s rule. Is that limited to just the replacement costs of the equipment damaged in the accidental release itself, or are there other costs we should include in relation to the $1,000,000 figure?
As a general matter, if an accidental release causes property damage, the total amount should be easy to estimate – at least in terms of whether the total damages are less than or greater than $1,000,000. The full range of costs should be included in the calculation. Clearly, a prompt estimate related to the cost of any equipment damaged that needs to be repaired or replaced must be factored into any calculation for damage. In addition, in the chemical and petrochemical industries, most equipment is not just swapped out, but engineering work must often be done as part of a broader management of change effort, as required by OSHA’s PSM Standard and EPA’s RMP Rule, which is also frequently accompanied by specialized contractor costs associated with transportation and installation, employee overtime, and the like. There may be other such costs as well, unique to any given situation. Additionally, loss of use must be included for consideration. Most CSB stakeholders know exactly how many pounds, gallons, or barrels of product typically flow through a process unit and should be able to quickly and easily estimate the cost associated with a unit going down based on either the number of hours or days that the unit must be down due to damage caused by the accidental release. CSB stakeholders should be well acquainted with all this information – since such calculations often are needed for routine internal business reporting, or even filing a business interruption insurance claim. In accordance with the CSB’s legislative history, damages to “natural resources” should also be factored into this figure.” (emphasis added in answer).
- “Our company is not a typical CSB stakeholder. We are not in the chemical, petrochemical, or oil and gas business. However, as a part of our business operations, we do purchase, store, and use chemicals, such as diesel for generators or lead-acid batteries that provide backup power for critical network infrastructure. Does this rule apply to us?
The answer to this question depends on the specific facts. In consideration of the CSB’s creation within the 1990 CAA Amendments, the text of the CSB’s enabling statute, and pertinent legislative history, the CSB would observe that the agency was created to investigate, report on, and hopefully prevent chemical accidents. Clearly, the CSB was not intended to address all industrial accidents or fires. If, for example, a lead-acid battery exploded at a financial institution data center, the CSB will view that incident differently from a lead-acid battery explosion for an uninterruptable power supply to a chemical plant’s computer control system that leads to an accidental release resulting in a fatality, serious injury, or substantial property damage.
Another example of a general industry incident would include a paper-product warehouse that experiences a fire because of an electrical wiring problem, or the malfunctioning of a diesel generator which causes an accidental release of combustion products into the ambient air, both of which could result in substantial property damage. In such events, the CSB would not deploy investigators because the incident was not associated with the production, processing, handling, or storage of chemical substances. As a result, the CSB would not expect the warehouse owner to file an accidental release report.
As noted above, however, no sanction or enforcement action results from reporting an accidental release if there was no legal requirement to report it. On the other hand, the failure to report an accidental release when it actually is required to be reported can result in an enforcement action against the owner/operator by the EPA.” (emphasis added in answer).
- “What happens if an employee or contractor gets injured during a planned activity, such as permitted flaring? Because the activity was planned and, therefore, intentional, does that make it not an “accidental release” and not reportable under the rule?
The activities planned and undertaken at stationary sources are sometimes inherently dangerous. Sometimes, even planned events go wrong, and an accident can occur. If the accident involves an accidental release of an extremely hazardous substance, and one of the three established triggers for CSB jurisdiction occurs (fatality, serious injury, or substantial property damage), then the accidental release must be reported. In this example, the flaring was planned (intentional), but the release in no way could have been intended to injure a worker or cause other negative consequences (accidental). In this way, the planned and permitted release via flaring still resulted in an accidental release, and based on the consequences, this accidental release must be reported.” (emphasis added in answer).
- “Are substances, such as water or air, considered extremely hazardous substances—for example, high-temperature steam?
An accidental release of water or air could meet the criteria of an extremely hazardous substance. The Accidental Release Reporting Rule states that the owner or operator of a stationary source must report any accidental release resulting in a fatality, serious injury, or substantial property damage. The rule’s definition of “extremely hazardous substance” includes any substance that alone, or in combination with other substances or factors, causes death, serious injury, or substantial property damages. The manner in which a substance inflicts such consequences may vary broadly (fire, explosion, effects of toxicity, asphyxiation, etc.) but what defines the substance as “extremely hazardous” is its demonstrated impact on people and the environment upon being accidentally released from a stationary source into the ambient air, as those terms are defined.” (emphasis added in answer).
- “Does the Accidental Release Reporting Rule apply to liquids, or is it limited to vapor releases?
Nothing in the Accidental Release Reporting Rule limits an extremely hazardous substance to a gas or vapor. Limiting reporting to just vapor releases would undercut a primary purpose of section 112 of the 1990 CAA Amendments — to protect workers inside structures at a stationary source. Many chemicals or petrochemicals in use throughout industry are in a liquid or a solid state; so, whether they are in a liquid, solid, or gas state, extremely hazardous substances can be released into the ambient air, as defined by the rule. Even accidental releases of solids, such as combustible dust, can result in a fatality, serious injury, or substantial property damage.” (emphasis added in answer).
- “Is the reporting requirement calculated at 8 hours from an event (accidental release) or from being cognizant of tripping one of the reporting triggers (fatality, serious injury, or substantial property damage)?
The owner or operator of a stationary source must report any accidental release resulting in a fatality, serious injury, or substantial property damage. If the owner or operator has not submitted a report to the NRC (for example, due to a release mandatory for reporting under CERCLA or some other federal environmental statute) and was instead required to notify only the CSB under Section 1604.3(b), the owner or operator must submit a report directly to the CSB within eight hours of the accidental release. If initial reports or estimates of the outcome of an accidental release show that the accidental release was not reportable, but the owner or operator later obtains information within the 30-day “safe harbor” period following the release that shows that the accidental release resulted in a fatality, serious injury, or substantial property damage, the owner or operator must submit a report to the CSB immediately, For example, consider a worker exposed to a substance who goes home at the end of the workday rather than going to a hospital for evaluation or treatment. That night, the worker’s symptoms escalate, prompting inpatient overnight admission and treatment at a hospital. The facts underlying the original evaluation of the accidental release have changed, and the new information makes the event reportable under the Accidental Release Reporting Rule. Under the rule, if a report was made but important facts change, the owner or operator can update the reported information within 30 days without enforcement consequences, and failure to do so could result in an enforcement action. There is no requirement, however, to update accidental release reports with information that only becomes available after the conclusion of the 30-day “safe harbor” period. The CSB will use its discretion to decide whether to conduct follow-up information-gathering activities after the 30-day window has passed, and owners or operators must continue to comply with any request for information from the CSB (if any) whenever such a request occurs.” (emphasis added in answer).
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Let us know if you have any questions about the CSB’s Accidental Release Reporting Rule, or if we can provide help determining whether an event is reportable and how best to make the report to the CSB.