Legal Updates

Late last year, the U.S. Chemical Safety and Hazard Investigation Board (CSB) proposed reporting requirements for accidental chemical releases. On February 5, 2020, a new rule adopting these reporting requirements was announced. The proposed rule requires owners and/or operators of facilities with stationary air emissions to report to the CSB, within 8 hours of release, any accidental release resulting in a) fatality, b) serious injury, or c) substantial property damage. The report must include the following: a brief description of the facility; a description of the release; approximate time of the release; an indication of whether the release involved fire, explosion, death, serious injury or property damage; the material involved in the release and appropriate identifiers; evacuation efforts and scope of impact to the general public; and if known, the amount of the release, number of fatalities, serious injuries, and estimated property damage.

This proposed rule imposes new requirements on industry in addition to the already existing requirements under various federal regulations, including CERCLA, EPCRA, SPCC, CAA, CWA, RMP, PSM, and OPA. In fact, the CSB has clarified that notifications made to the National Response Center would not suffice to comply with the proposed rule; the NRC identification number would have to be submitted to the CSB within 30 minutes of submission of the NRC Report. Moreover, the proposed rule would require facilities to undertake a new analysis as to whether an accidental release falls within the scope of the proposed requirements, which significantly differ from the requirements set forth in the above regulations and which include different definitions (e.g., definitions for ambient air, extremely hazardous substance, and the general public).

The proposed regulations are in response to a District Court order requiring the CSB to issue rules by February 2020 regarding the reporting of accidental chemical releases. The new rule is expected to be published in the Federal Register this week, and the new reporting requirements will be effective 30 days thereafter. While CSB is not an enforcement agency, the new rule provides that the CSB may refer violations to the EPA for enforcement, which could include penalties, civil action or criminal action. There will be a one-year grace period following the effective date of the rule, during which violations will not be reported to the EPA unless the failure to report was intentional.