Chemical Safety Board Issues Final Rule for Accidental Release Reporting

March 17, 2020
Michael C. Nines, P.E., LEED AP and Michelle New
MGKF News Flash

Last month, the U.S. Chemical Safety and Hazard Investigation Board (CSB) issued a final rule establishing accidental release reporting requirements, effective March 23, 2020.  See Federal Register Notice here.  The final rule satisfies the statutory requirement for the CSB to establish, by regulation, the requirements for reporting releases into ambient air subject to the CSB’s investigative jurisdiction.  The purpose of the rule is to ensure that the CSB receives rapid, accurate reports of any accidental release that results in a fatality, serious injury, or substantial property damage. The rule was established in response to a U.S. District Court Order requiring the CSB to issue a rule requiring the reporting of accidental chemical releases to the CSB.  See Air Alliance of Houston, et al. v. U.S. Chemical Safety and Hazard Investigation Board, 365 F. Supp. 3d 118 (D.D.C. Feb 4, 2019).

Under the rule, regulated owners or operators of “stationary sources” are required to directly report “accidental releases” resulting in a fatality, serious injury, or substantial property damage to the CSB within eight hours of the release.  The new release reporting requirements are in addition to other federal release reporting requirements, such as those imposed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).  The CSB’s implementing regulations define a “stationary source” as “any buildings, structures, equipment, installations, or substance-emitting stationary activities which belong to the same industrial group, which are located on one or more contiguous properties, which are under the control of the same person (or persons under common control), and from which an accidental release may occur.”  The final rule also defines “accidental release” as “an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source” and “ambient air” as “any portion of the atmosphere inside or outside a stationary source.”  Please note that the CSB’s use of the term “extremely hazardous substance” in the final rule is not equivalent to the Environmental Protection Agency (EPA) use of the same term under EPCRA.  The CSB also defines “serious injury” as “any injury or illness that results in death or inpatient hospitalization” and “substantial property damage” as “estimated property damage at or outside the stationary source equal to or greater than $1,000,000.”

The CSB will require reporting within eight hours of an accidental release by notifying and submitting a report to the CSB via email or telephone.  If the facility has already notified the National Response Center (NRC) of the accidental release, the CSB reporting requirement is deemed satisfied if the facility owner/operator also submits the NRC identification number to the CSB within 30-minutes of submitting a report to the NRC.

The information that is to be required in an Accidental Release Report must include the following information (among other items):

  • Name and contact information for owner/operator;
  • Name and contact information for person making report;
  • Location information and facility identifier;
  • Approximate time of accidental release;
  • Brief description of the accidental release;
  • An indication of whether the release resulted in a fire, explosion, death, serious injury, or property damage;
  • Name of materials involved and Chemical Abstract Service (CAS) number;
  • If known, the amount of release; number of fatalities and serious injuries; estimated property damage at or outside the stationary source; and
  • Whether the accidental release resulted in an evacuation order impacting members of the general public.

The CSB regulations specify that failure to report an accidental release may result in administrative penalties; civil action; or criminal action and that suspected violations will be forwarded to the EPA Administrator for enforcement.  That said, the preamble to the final rule states that during a period of one-year following the effective date of the final rule, the CSB will contact any owner/operator who the agency believes has failed to file a required report.  If a report is filed immediately following CSB notification, the CSB will not refer the failure to report to the EPA.

Facility owner/operators should carefully review the final rule and integrate the CSB’s new accidental release reporting requirements into their existing Emergency Response plans to ensure that the appropriate considerations are being made to account for when reporting to the CSB may be required in the event of an accidental release.

If you have questions about the final rule, please contact MGKF technical consultant Michael C. Nines, P.E., LEED AP at 484-430-2350.