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:
- The name and contact information for the owner/operator;
- The name and contact information for the person making the report;
- The location information and facility identifier;
- The approximate time of the accidental release;
- A brief description of the accidental release;
- An indication whether one or more of the following has occurred:
- (1) Fire;
- (2) Explosion;
- (3) Death;
- (4) Serious injury; or
- (5) Property damage.
By Eric J. Conn and Beeta Lashkari
Last week, on the day of a federal district court-mandated deadline — Wednesday, February 5, 2020 — the Chemical Safety and Hazard Investigation Board (the CSB) announced its Final Rule on Accidental Release Reporting. The CSB posted a prepublication version of the Final Rule last week, on February 5th. The official version should be published in the Federal Register within the next few days.
As we previously reported, on December 12, 2019, the CSB issued a Notice of Proposed Rulemaking for its new reporting rule, which set out the circumstances when facility owners and operators are required to file reports with the CSB about certain accidental chemical releases and what must be communicated in the reports.
As stated in the NPRM, the purpose of the rule is “to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”
The rule 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. The specific information required to be provided in the accidental release report includes:
- A brief description of the accidental release;
- Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
- 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; and
- Whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.
Issuance of the CSB’s reporting rule has been a long time coming. Although the CSB did not become operational until 1998, its enabling legislation – the Clean Air Act Amendments – was enacted in 1990. That statute, from nearly thirty years ago, expressly required the agency to issue a rule governing the reporting of accidental releases to the CSB. Although the CSB submitted an Advanced Notice of Proposed Rulemaking for Chemical Release Reporting in 2009, that effort died on the vine. Accordingly, the CSB has never had its own reporting rule, relying instead on other sources to receive incident information. In February 2019, however, Continue reading
Last week, the CSB issued a Notice of Proposed Rulemaking for its accidental release reporting rule, which establishes the criteria for when facility owners and operators are required to report to CSB accidental chemical release incidents and what must be included in those reports. Here is a link to an article we posted that summarizes the CSB’s proposal and background about the situation. If promulgated, the rule would require owners and operators of stationary sources to report to the CSB within four hours any accidental chemical releases that results in a:
- Serious injury; or
- Substantial property damage.
A release reporting rule was mandated by the CSB’s enabling statute (decades ago), but the Agency had never issued such a rule. In February of this year, however, a federal court ordered the CSB to promulgate a final reporting rule within 12 months of the court’s ruling—by mid-February 2020. With CSB waiting until the 11th hour to publish this NPRM, interested stakeholders have only a very small window to make sure their concerns about the proposed rule are heard. Comments are due to the CSB by January 13, 2020, and because the deadline to promulgate the rule is court-mandated, there likely will be no extension of the comment period.
Although the proposal indicated that CSB contemplated some of the duplicative effort that a separate CSB reporting rule would require, the proposed rule does not come close to addressing employers’ legitimate concerns about the burden this reporting requirement will place on employers at a time when their attention should be focused on emergency response. To compound the problem, the scope of reportable incidents and criteria for reportability aligns neither with CSB’s investigative jurisdiction nor with other agencies’ already-existing reporting requirements, and, as formulated, could create disincentives for robust internal reporting of incidents.
Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group is coordinating an ad hoc coalition of employers to prepare a set of comments to submit to the CSB. Continue reading