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Facilities Must Comply with New Release Reporting Rule for Accidental Releases Issued by Chemical Safety Board

Companies and facilities that experience an accidental release have a new regulation to consider for releases of regulated substances or extremely hazardous substances.  On February 21, 2020, the U.S. Chemical Safety and Hazard Investigation Board (CSB) issued its new final rule governing reporting of accidental releases subject to the Board’s investigatory jurisdiction.  The new rule requires the owner or operator of a stationary source to report to the CSB any accidental release resulting in a fatality, serious injury (defined as resulting in death or inpatient hospitalization), or substantial property damages (defined as damage of $1,000,000 or more).  A copy of the rule in today’s Federal Register is available here.

A report required under this rule must include:

  1. The name of, and contact information for, the owner/operator;
  2. The name of, and contact information for, the person making the report;
  3. The location information and facility identifier;
  4. The approximate time of the accidental release;
  5. A brief description of the accidental release;
  6. An indication whether one or more of the following has occurred: (1) fire; (2) explosion; (3) death; (4) serious injury; or (5) property damage;
  7. The name of the material(s) involved in the accidental release, the Chemical Abstract Service (CAS) number(s), or other appropriate identifiers;
  8. If known, the amount of the release;
  9. If known, the number of fatalities;
  10. If known, the number of serious injuries;
  11. Estimated property damage at or outside the stationary source;
  12. Whether the accidental release has resulted in an evacuation order impacting members of the general public and others, and, if known: (1) the number of persons evacuated; (2) approximate radius of the evacuation zone; (3) the type of person subject to the evacuation order (i.e., employees, members of the general public, or both).

An owner or operator who has reported the release to the National Response Center (NRC), may satisfy the CSB reporting requirement by submitting the NRC identification number to the CSB immediately following the report to the NRC.  If the owner or operator has not reported to the NRC, they must report directly to the CSB within eight (8) hours of the release.  This expanded reporting time responds to commenters’ objections to the originally proposed 4-hour reporting requirement. (See our earlier update.)

The report may be revised, without penalty, within 30 days following submission of the report and an owner or operator may submit a revised report within 60 additional days if it explains why additional time was needed.

The final rule concludes an extended process which has included numerous legal challenges and the imposition last year of a one-year rulemaking deadline by the U.S. District Court for the District of Columbia.  However, response to the December draft rule leaves open the possibility of continued legal challenges, with strong opposition expressed by worker safety and environmental interest groups.

The rule will be effective March 23, 2020.  Failure to comply with the reporting requirements is subject to administrative, civil or criminal enforcement under the Clean Air Act.

This post was drafted by Jessica Merrigan and Paul Jacobson, attorneys in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.