Background

The CSB, an independent federal agency, was established in 1990 and since that time has been under a statutory duty to issue a rule requiring reporting of accidental releases.³ However, historically, the CSB has used other information sources rather than issuing its own direct reporting rule to learn of incidents within its jurisdiction. Environmental groups sued the CSB in 2017 in federal district court seeking to compel CSB to issue the reporting rule required by statute. In February 2019, the court ordered the CSB to promulgate a final reporting rule by February 5, 2020.⁴

CSB’s Final Chemical Incident Reporting Rule

The Final Reporting Rule requires owners or operators of stationary sources to report any accidental release resulting in a fatality, serious injury, or “substantial property damage” to the CSB within eight hours of the release. The purpose of the Final Reporting Rule is to “ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria” so CSB can quickly determine whether the accident warrants CSB deployment for an investigation. The Final Reporting Rule is separate from and in addition to any other release reporting obligation imposed under environmental laws, such as those under the Clean Water Act, other parts of the Clean Air Act, or the Emergency Planning and Community Right-to-Know Act.

Reporting Triggers

Facilities Subject to the Rule

The CSB broadly defines facilities subject to the Final Reporting Rule to include any structure or activity from which a release occurs that causes a fatality, covered injury, or covered property damage. More specifically, a “stationary source” includes “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 Reporting Rule defines “accidental release” as an “unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.”

Ambient Air

CSB has taken a very broad approach to the definition of “ambient air” to include “any portion of the atmosphere inside or outside a stationary source.” CSB asserts in the rule preamble, without any citation to any authority, that a primary purpose of the Clean Air Act Amendments of 1990 is to protect workers inside structures at a stationary source.

Regulated Substances

The CSB reporting requirement applies to any extremely hazardous substance or regulated substance that is accidentally released.⁵ However, CSB’s Final Reporting Rule focuses on the consequence of the release of the substance based on its impact on people and the environment, rather than the EPA list of regulated and extremely hazardous substances. The Final Reporting Rule defines an “extremely hazardous substance” as “any substance that may cause death, serious injury, or substantial property damages, including but not limited to any ‘regulated substance’ at or below any threshold quantity set by the EPA Administrator.” Thus, an accidental release of a regulated substance that is below the EPA Administrator’s threshold quantity but that still results in death, serious injury, or substantial property damage must be reported. The results-based approach presents reporting challenges for industry because reliance on the EPA list of regulated and extremely hazardous substances does not assure compliance with the Final Reporting Rule. The rule preamble asserts that “[w]hen there is an accidental release which results in a death or serious injury, there should rarely be confusion as to whether the substance involved was hazardous.” Going forward, covered facilities will need to understand that just because an incident has not triggered a reporting obligation under certain environmental programs does not mean that the facility does not need to make a report to CSB.

Serious Injury and Substantial Property Damage

The Final Reporting Rule limits the definition of “serious injury” to “any injury or illness that results in death or inpatient hospitalization,” and defines “substantial property damage” as “estimated property damage at or outside the stationary source equal to or greater than $1,000,000.” The threshold amount of $1,000,000 sets a bright-line standard to ensure reporting of significant accidental releases when there is not a death or serious injury. The reporting threshold is relatively low considering the cost to repair industrial equipment. The threshold may be even lower considering that CSB intends that business interruption caused by property damage should be included in the calculation of the overall cost of an incident for the reporting threshold. The CSB in its rule preamble concludes that any company operating sophisticated equipment should have the “wherewithal to make such estimates expeditiously.”

Report Contents

Within eight hours of an accidental release, the facility’s owner or operator must notify and submit a report to CSB either by email or telephone. A facility that has already submitted a report to the NRC, pursuant to 40 C.F.R. Section 302.6, may satisfy its CSB reporting obligation by submitting its NRC identification number to the CSB. However, the facility must submit its NRC identification number within thirty minutes of submitting a report to the NRC. While this measure is likely meant to reduce reporting obligations, as a practical matter, submitting the NRC report to the CSB would have the effect of substantially reducing the time allowed for a report to the CSB given the constraints for reporting releases to the NRC. Such an approach may be more feasible when an incident reporting trigger such as a fatality is known. However, the reduced time allowed for submitting the NRC report to the CSB may not allow enough time to determine whether a property damage reporting trigger has been exceeded. If an owner or operator does not submit a report to the NRC, then the owner or operator must report directly to the CSB within the eight-hour window.⁶

The accidental release report submitted to the CSB must include, among other things:

• The name and contact information of the owner, operator, and person making the report;
• The facility’s location information and facility identifier;
• The approximate time of the accidental release;
• A brief description of the accidental release;
• An indication of whether the release has resulted in a fire, explosion, death, serious injury, or property damage;
• The name of the material(s) involved in the release, as well as their Chemical Abstract Service (“CAS”) numbers;
• 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.⁷

If known to the owner or operator, the report must also include the following:

• The amount of the release;
• The number of fatalities;
• The number of serious injuries;
• The number and type⁸ of individuals evacuated; and,
• The evacuation zone’s approximate radius.⁹

The Final Reporting Rule allows an owner or operator of the stationary source to revise or update information reported to the NRC or CSB without penalty within 30 days of the report’s submission, or up to 90 days after submitting the report if the owner or operator explains why the revisions could not have been submitted within the first 30 days. In its preamble, the CSB restated that the rule is “not intended to create a trap for any owner/operator submitting a report on short notice” based on the best available information. However, CSB implies that revisions or updates are allowed only to correct “unintentionally incorrect information.”

Penalties for Non-Compliance

CSB may forward suspected violations of the reporting rule to the EPA Administrator for appropriate enforcement action. Penalties for failure to make a required report after an accidental release may include administrative penalties, civil actions, or criminal actions against the non-compliant entity. However, the preamble states that there will be a one-year enforcement grace period from the effective date of the Final Reporting Rule, unless there is a “knowing failure to report.” CSB also expressed its view in the preamble that a “significant number” of accidental releases are concentrated within certain industries and states that it anticipates that “firms within these sectors will be the focus of initial compliance education outreach.” However, when appropriate, CSB indicated that it may extend the one-year grace period for sectors that might require additional time to comply with the reporting rule. The CSB also acknowledges that situations may arise when an owner or operator is unable to report an accidental release within the required eight hours and notes that it will consider a long-term approach to these “unique situations.” Despite these statements regarding potential flexibility, it is unclear how aggressive CSB will be when it comes to enforcing this long-awaited reporting rule.

Conclusion

The Final Reporting Rule will become effective within 30 days of its publication in the Federal Register. Once effective, the CSB intends to issue periodic compliance guidance for the rule and recommends submitting comments to address unusual circumstances, including circumstances involving small operations or limited employees. Covered businesses should consider revising their incident report procedures so timely reports are completed should a reporting requirement be triggered.

¹ CSB News Release, Statement from CSB Interim Executive Dr. Kristen Kulinowski on the Chemical Incident Reporting Rule, CSB (Feb. 5, 2020), available at https://www.csb.gov/statement-from-csb-interim-executive-dr-kristen-kulinowski-on-the-chemical-incident-reporting-rule/.

² Prepublication Copy Notice, CSB (Feb. 3, 2020), available at https://www.csb.gov/assets/1/6/prepublicationcopy2-3-20.pdf [the “Final Reporting Rule”].

³ 42 U.S.C. § 7412(r)(6)(C)(iii).

⁴ Air All. Hous. v. U.S. Chemical & Safety Hazard Investigation Bd., 365 F. Supp. 3d 118, 132 (D.D.C. Feb. 4, 2019).

⁵ See 42 U.S.C. § 7412(r)(3).

⁶ See Final Reporting Rule, at § 1604.3(c), 85.

⁷ See id. at § 1604.4(a)-(g), (k) & (l), 86-87.

⁸ “Type” refers to the category of each individual (i.e., employees of the stationary source’s owner, members of the general public, or both). Id. at § 1604.4 (l)(3), 87. See id. at § 1604.2, 84, for the definition of “general public”.

⁹ Id. at § 1604.4(h)-(j) & (l), 87.