BREAKING – CSB Issues Final Accidental Release Reporting Rule

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.Picture1

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:

  1. A brief description of the accidental release;
  2. Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
  3. The number of fatalities and/or serious injuries, and the estimated property damage at or outside the stationary source;
  4. The name of the material involved;
  5. The amount of the release; and
  6. 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

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history. 

To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click here to send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.

We are exploring CLE approval for this series.  If you are interested in CLE or other forms of Continuing Education credits, click here to complete a survey.

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd

All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd

OSHA Settlement
Tips And Strategies

Tuesday, February 25th

Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th

Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th

Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd

Annual Cal/OSHA Update

Thursday, April 16th

Impact of the Election on OSHA

Thursday, October 22nd

E-Recordkeeping and
Injury
Reporting Update

Wednesday, May 20th

Updates about OSHA’s PSM
Standard and EPA’s RMP Rule

Tuesday, November 17th

OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th

Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.
Continue reading

Coalition to Comment on CSB’s Proposed Accidental Release Reporting Rule

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:

  • Fatality;
  • 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

CSB Issues Notice of Proposed Rulemaking for New Accidental Release Reporting Rule

By Eric J. Conn and Beeta B. Lashkari

Earlier this week, on December 12, 2019, the U.S. Chemical Safety and Hazard Investigation Board (CSB) issued a Notice of Proposed Rulemaking (NPRM) for its long-awaiting chemical incident reporting rule, which sets out the circumstances when facility owners and operators are required to file reports with the CSB of 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.”

If promulgated, the rule would require owners and operators of stationary sources (chemical facilities) to report  accidental releases that result in a fatality, serious injury, or substantial property damage to the CSB within four hours.  The proposed rule also identifies the specific information required to be included in the accidental release report:

  1. A brief description of the accidental release;
  2. Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
  3. The number of fatalities and/or serious injuries, and the estimated property damage at or outside the stationary source;
  4. The name of the material involved;
  5. The amount of the release; and
  6. Whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.

Importantly, recognizing that some or all of this information may not be known within four hours of an accidental release, the CSB decided to  include the qualifier — “if known” — for much of the information that would be required in the report.

If, however, the owner/operator submits a report to Continue reading

OSHA’s Fatality, Hospitalization & Amputation Reporting Rule: Lessons Learned [Webinar Recording]

On November 14, 2017, Eric J. Conn and Lindsay A. DiSalvo of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA’s Fatality, Hospitalization & Amputation Reporting Rule.

In former President Obama’s second term, his Administration rolled-out a major change to OSHA’s Fatality & Significant Injury Reporting Rule.  Not to be confused with the new Electronic Recordkeeping Rule (which requires certain employers to submit injury and illness data to OSHA on annual basis), this amended rule required all employers to make prompt phone calls to OSHA when work related fatalities or covered in-patient hospitalizations and amputations occur.

The rule has resulted in thousands more reports of incidents to OSHA than before.  Now, three years into the new reporting scheme, we have learned a lot of lessons about what is being reported to OSHA, what non-mandatory reports are often made, and what OSHA is doing with all the new reported incidents.

During this webinar, participants learned:

Continue reading

“OSHA’s Fatality & Injury Reporting Rule: What We Know After One Year” [Webinar Recording]

On February 11th, Eric J. Conn and Lindsay A. Smith of Conn Maciel Carey’s national OSHA Practice Group delivered a complimentary webinar regarding “OSHA’s New Fatality and Injury Reporting Rule – What We Know Now” as part of the Firm’s 2016 OSHA Webinar Series.

To kick off 2015, OSHA rolled-out a major change to its Fatality & Injury Reporting Rule to require employers to contact OSHA thousands of times more often to report incidents, which means many more inspections.  A year into the new reporting regime now, it seemed like the perfect time to take a look at what is being reported to OSHA and what OSHA is doing with all the new reports.

Participants learned about: Continue reading