CSB Proposes New Accidental Chemical Release Reporting Requirements
Feb 10, 2020
The Chemical Safety and Investigation Board (CSB) recently issued a notice of proposed rulemaking (NPRM) that would create new accidental chemical release reporting requirements, in addition to those already in place under other regulations.
In comparison to existing regulatory requirements, the CSB proposed rule would broaden reporting requirements by requiring reporting under a range of situations including occurrences of employee injuries, rather than simply triggering reporting through exceedance of threshold reporting quantities for specific chemicals.
Let’s take a closer look at the provisions of the proposed rule and the ways it may affect your reporting responsibilities.
First, let’s review the background to understand the reasons why CSB issued the NPRM.
In a February 2019, a U.S. District Court decision in Air Alliance Houston v. U.S. Chemical Safety and Hazard Investigation Board required CSB to develop a rule requiring reporting of accidental chemical releases to the CSB.
The plaintiffs in this case, Air Alliance Houston, stated that CSB was obligated to develop such a rule by the terms of its enabling statute. Congress established the CSB in 1990 through the Clean Air Act Amendments (CAAA), with the mission to investigate certain types of accidental chemical releases and propose safety measures "to reduce the likelihood or the consequences of accidental releases." The CAAA required CSB to "establish by regulation, requirements binding on persons for reporting accidental releases into the ambient air subject to the Board's investigatory jurisdiction."
As Air Alliance Houston pointed out in the suit, CSB had taken previous steps toward such a rulemaking, such as soliciting input from stakeholders, but had failed to actually issue a rule. As a result, the U.S. District Court required CSB to issue a NPRM by February, 2020 and CSB has issued the current NPRM to satisfy that requirement.
What May Be Changing?
The NPRM would require owners or operators of stationary air emissions sources to report any accidental chemical release to ambient air resulting in a fatality, serious injury, or substantial property damage (i.e., damage estimated to be equal or greater to $1,000,000) to the CSB within four hours. According to the NPRM, notifying National Response Center (NRC) about the release is not sufficient to satisfy this obligation and separate reporting to CSB is required, although if an NRC report has already been made, the facility owner/operator may fulfill their obligation by simply submitting the NRC number to the CSB.
Specific details that need to be included in the report include:
- Facility location
- Site contacts
- A brief description of the accidental release
- The amount of release, if known
- The identity of the chemical involved in the release
- The approximate time of the release
- Indication of whether the release involved fire, explosion, property damage, serious injury, or a fatality, and numbers of each if known
- Evacuation reports and estimated impacts to the general public
This reporting requirement is not only additional to other chemical release reporting requirements under the Clean Air Act (under which CSB is organized), but also to requirements established under other regulations including the Emergency Planning and Community Right to Know Act (EPCRA), OSHA Process Safety Management (PSM), EPA Risk Management Plan (RMP) and Spill Prevention Countermeasure and Control (SPCC).
It should be noted that there are several areas where the NPRM appears to lack continuity with some of these other existing requirements. Several key differences are listed below:
- Definition of “ambient air”: The CSB definition includes any portion of the atmosphere inside, adjacent to, or outside a stationary source. By contrast, existing EPA air quality standards define “ambient air” as referring only to the portion of the atmosphere external to buildings. The definition used by CSB is, therefore, broader that that used in current air quality standards.
- Definition of “extremely hazardous substance”: For purposes of reporting, the CSB proposed rule defines an accidental release as an unanticipated release of a regulated substance or an “extremely hazardous substance” into the air from a stationary source. The term “extremely hazardous substance” is already defined under EPCRA as referring to chemicals listed in 40 CFR 355 Appendices A and B, but CSB’s definition is more general, referring to any chemicals that can cause death, serious injury, or property damage, whether on their own or in combination with other chemicals or factors. Because of this definition, a wider range of chemicals can potentially trigger reporting.
- Definition of “serious injury”: An interesting, and potentially complicating, aspect of the NPRM is that it bases the duty to report on whether there were occurrences of fatalities, “substantial property damage,” or “serious injuries,” rather than on threshold release amounts of particular chemicals like other regulations related to accidental chemical release reporting do. The NPRM’s definition of a “serious injury” corresponds with OSHA’s definition of a recordable injury under the Recordkeeping Standard, namely, an injury resulting in a fatality, days away from work, work restrictions or job transfers, loss of consciousness, or an injury or illness diagnosis by a physician. Therefore, the criteria for determining when reporting must occur is not only different than it is in other regulations because it is not based on threshold quantities, but is also potentially much broader, because any OSHA recordable injury connected with an accidental chemical release to ambient air would trigger reporting.
- Reporting time: While the NPRM is broader than existing regulations in the categories discussed previously, it allows additional time for reporting compared with existing regulations. Under EPCRA requirements, owners/operators must report the release within 15 minutes. However, as noted previously, other forms of notification do not suffice for satisfying CSB’s proposed requirements, so separate reporting would be required in addition to reporting already mandated under existing regulations, even if such reporting simply referenced the NRC number for an incident already reported to NRC.
The public comment period for the NPRM ended on January 13, 2020. It remains to be seen whether stakeholder input received during that period will influence CSB to revise any of the areas discussed above when they eventually issue a final rule, or how long it may take the final rule to appear.
What Do I Need to Do?
Given some of the uncertainties involved in the NPRM, facility managers would be wise to follow future developments with the rulemaking. Regardless of what revisions may be made to the proposed requirements prior to development of a final rule, any facilities that store hazardous chemicals will need to have a good handle on their chemical management and emergency planning practices.
How can you prepare? Be sure you have a complete and current chemical inventory and library of safety data sheets (SDSs), and even better, make sure you have rapid access to SDSs to minimize response time during an accidental release. Modern software systems can even give you the ability to easily map your chemical storage locations onto a virtual layout of your facility, so you can have better visibility of chemical hazards and be better prepared for reporting potential releases.
Getting a handle on chemical management today will help you keep up with current regulatory requirements for chemical release reporting, and prepare for future CSB requirements.
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