On December 11, the U.S. Chemical Safety and Hazard Investigation Board (CSB) proposed a rule requiring that companies swiftly provide the CSB notice of accidental chemical releases sufficient to trigger a CSB investigation, to help the CSB make deployment decisions and to more rapidly respond to release incidents.
The CSB is an independent federal agency charged with investigating chemical accidents that result in a fatality, serious injury, or substantial property damages. The Clean Air Act Amendments of 1990, which established the CSB, required the CSB to craft and implement an accidental release reporting regulation. The CSB is yet to finalize such a rule. In 2009, the CSB proposed such a rule but failed to finalize it. Several federal agencies and community groups have urged the CSB to finalize a rule in recent years, and on February 4, 2019, a U.S. District Court judge ordered the CSB to issue a final rule within 12 months.
Under the CSB’s December 11 proposed rule, accidental release incidents that fall within the CSB’s investigatory jurisdiction—accidental releases of regulated substances or extremely hazardous substances from stationary sources, resulting in a fatality, serious injury, or substantial property damages (defined as damages above $1 million)—will trigger a duty on the part of owners/operators of involved stationary sources to notify the CSB within four hours of the incident, by emailed report or by phone. The CSB estimates that the rule will require approximately 200 reports per year.
The notification must include the owner/operator’s contact information; contact information for the person reporting; the location and facility identifier; the approximate time of the release; a brief description of the release; an indication whether the release has caused fire, explosion, death, serious injury, or property damage; the materials involved; the amount of the release, the number of fatalities, and the number of serious injuries, if known; estimated property damage; and details of an evacuation order, if issued.
Under the proposed rule, if an involved facility has submitted a report to the National Response Center (NRC), it can satisfy its duty to the CSB merely by notifying the CSB of the NRC report identification number.
The CSB will accept comments on the proposed rule submitted by January 2020.
This post was drafted by Paul Jacobson, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.
