Seyfarth Synopsis: The U.S. Chemical Safety and Hazard Investigation Board (CSB) has proposed new accidental chemical release reporting requirements that are broad in scope and would cover additional chemicals, lower threshold quantities, and are generally more narrow than existing regulatory release reporting requirements already facing industry.

The CSB proposed rules on Accidental Release Reporting last month which impose on industry new reporting requirements in addition to existing reporting requirements under CERCLA, EPCRA, SPCC, CAA, CWA, RMP, PSM and OPA in the event of an accidental chemical release. 84 Fed. Reg. 67899 (Dec. 12, 2019). The proposed rule is confusing in that it utilizes different definitions than used under other EPA release reporting rules and requires facilities to undertake a new analysis of the type of chemical release that would fall under the scope of the CSB's reporting requirements.

The rule is proposed pursuant to 42 U.S.C. 7412(r)(6)(C)(iii), which specifies that the CSB "shall establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board's investigative jurisdiction." The proposal comes after a U.S. District Court ordered the CSB to issue a rule by February 2020 requiring the reporting of accidental chemical releases to the CSB. See Air Alliance of Houston, et al. v. U.S. Chemical Safety and Hazard Investigation Board, 365 F. Supp. 3d 118 (D.D.C. 2019).

The proposed rule requires owners or operators of a stationary air emissions source to report to the CSB (in addition to all other reporting obligations to various regulatory authorities under other reporting requirements) any accidental release resulting in a fatality, "serious injury," or "substantial property damage." In addition to basic contact and location information, the report must include a brief description of the accidental 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.

According to the CSB, "the purpose of the proposed rule is to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria." However, the rule is troubling because it imposes requirements that are overly burdensome and confusing in light of existing EPA rules, definitions and policies, and existing regulatory spill and release reporting requirements. Below are six important distinctions about the CSB release reporting rule that industry members should take note of when considering the impacts of the required chemical release notifications:

First, the CSB has chosen to define "ambient air" differently and more broadly than EPA has under the Clean Air Act. Specifically, ambient air under the proposed CSB rule means any portion of the atmosphere inside, adjacent to, or outside a stationary source. Existing EPA air quality standards limit the definition of ambient air to the portion of the atmosphere that is external to buildings, to which the general public has access. By defining ambient air differently than under the CAA, CSB's intent is to "protect workers inside structures at a stationary source," (as if existing OSHA regulations do not already do so).

Second, the CSB defines an "accidental release" to mean an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source. The term "extremely hazardous substance" in turn is very broadly defined to include any substance that alone, or in combination with other substances or factors, causes death, serious injury, or substantial property damages. Not only are the conflicting definitions confusing, the CSB definition is different from the definition of "extremely hazardous substance" under CERCLA, which is defined based on lists of chemicals and their threshold quantities under Appendices A and B of 40 CFR Part 355. The CSB definition on the other hand, does not apply only to existing regulated substances or threshold quantities of a hazardous substance; instead, it focuses on the consequences of the substance in the event of a release. To highlight the broad scope of its applicability, the CSB definition of "extremely hazardous substance" includes the phrase "including but not limited to any 'regulated substance' at or below any threshold quantity set by the EPA Administrator. (emphasis added)." Thus, industry cannot rely on existing laws and rules to guide the analysis of what constitutes an "extremely hazardous substance" that would require reporting to the CSB in addition to reporting under EPCRA.

Third, the CSB's reporting requirement is tied to a fatality, serious injury, or "substantial property damage." The CSB has based its definition of "serious injury" on OSHA's definition of the term, to include any injury resulting in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness, as well as any injury or illness diagnosed by a physician. This definition, coupled with the lack of a trigger threshold quantity of a chemical, increases the number of chemical releases that facilities would otherwise be required to report under EPCRA, whether or not such releases have the potential to have a significant impact.

Fourth, the CSB defines "general public" as any person except for workers, employees, or contractors working for (or on behalf of) the owner or operator of a stationary source from which an accidental release has occurred and any person acting in the capacity of an emergency responder to an accidental release from a stationary source. The CSB acknowledges that EPA has longstanding policies and guidance documents limiting the scope of general public access to mean those areas where the general public does not have access to property, through implementation of a fence, physical barrier, or, based on December 2019 EPA guidance, other measures that would limit access to the land by the general public. The CSB is purposefully expanding on the definition of "general public" to include individuals who may be within the boundaries of a property.

Fifth, the CSB requires reporting within four hours after an accidental release has occurred, whereas CERCLA and EPCRA reporting is required within 15 minutes of a release. It has long been argued by industry that in the aftermath of a release, facilities are focused on managing response activities and ensuring employees and the public are safe. Amidst ongoing emergency response activities, coordination with local responders, and notifications to a multitude of existing regulatory authorities who must already be contacted, facilities must also provide a separate report by e-mail or telephone to the CSB.

Finally, the CSB clarifies that notifications made to the National Response Center (NRC) will not suffice under its proposed rule. The facility must take the additional step of submitting the NRC identification number to the CSB if it has not yet submitted a report directly to the CSB within four hours of the accidental release. Enforcement for failing to timely report accidental releases will be delayed for one year after the effective date of the rule.

Facilities impacted by this proposed rule should stay abreast of any developments regarding when the rule goes into effect and the impacts of the language in the final rule.

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