By: Maureen N. Harbourt and Lauren J. Rucinski

Starting March 23, 2020, facilities must add one more agency to the list of those that may need to be notified in the event of an accidental release: The U.S. Chemical Safety Board (“CSB”).The CSB was established by the 1990 Clean Air Act (“CAA”) Amendments.[1] The CAA directs the CSB, among other things, to investigate and report to the public any accidental release resulting in a fatality, serious injury, or substantial property damages.[2] The enabling legislation specified that the CSB must establish by regulation reporting requirements for accidental releases subject to the CSB’s investigatory jurisdiction.[3] Because the CSB had not complied with this requirement, the CSB was sued in federal court and ultimately was ordered to promulgate a final release reporting rule within 12 months of the decision.[4]

In line with this directive, the CSB issued a final rule on February 21, 2020 to require an owner/operator of a facility to submit an accidental release report to the CSB.[5] Key facts from this new CSB reporting rule are:

  1. the requirements take effect on March 23, 2020;
  2. the rule has a “consequence-based” reporting standard: facilities must report accidental releases of regulated substances and extremely hazardous substances to ambient air that result in a fatality, serious injury, or substantial property damage to the CSB within 8 hours;
  3. there are no reportable quantity (“RQ”) thresholds; and
  4. NRC reports may satisfy the rule if the NRC ID number is provided to CSB within 30 minutes of submitting the NRC report.

What is a Covered Release?

Under the new CSB rule, the owner/operator must report any unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source resulting in a fatality, serious injury, or substantial property damage.[6] The rule provides definitions of “regulated substance” and “extremely hazardous substance (‘EHS’)”; however, the definition of EHS is different than the definition of that term under EPCRA.[7]  The gist is that if the substance is regulated under the CAA section 112(r) or has the potential to cause a fatality, serious injury, or substantial property damage, then it is covered.

Another important note: the definition of the term ambient air is different in the CSB rule than it is in other sections of the CAA. CSB’s definition is not limited to external buildings or to general public access: ambient air under the CSB rule means any portion of the atmosphere inside or outside a stationary source.

What are the Procedures for Reporting?

The owner/operator has two means of reporting a covered release: (1) if applicable, submit the NRC identification number to the CSB within 30 minutes of submitting the report to the NRC or (2) submit a report directly to the CSB within eight hours of the accidental release by email to report@csb.gov, or by telephone at 202-261-7600.[8] If choosing the second option (i.e. not reporting using an NRC identification number), the report to the CSB requires contact information and a basic description of the accidental release; the relevant Chemical Abstract Service (“CAS”) Registry Number associated with the chemical(s) involved in the accidental release; and “if known” the amount of the release, number of fatalities, number of serious injuries, estimated property damage, and any evacuation information. See § 1604.4. for a full list of all required information.

The owner/operator of a stationary source, without penalty, may revise and/or update information reported by sending a notification with revisions by email to: report@csb.gov, or by correspondence to: Chemical Safety Board (CSB) 1750 Pennsylvania Ave. NW, Suite 910, Washington, DC 20006, within 30 days following the submission of a report to the CSB (or NRC).[9]

What if I have Lingering Questions?

The CSB acknowledged that this new rule may take some time to work out all of the practicalities and to educate affected sources. Thus, the CSB agreed to provide a one-year grace period for unintentional reporting deficiencies. The Preamble to the final rule stated: “For one year following the effective date of the rule, the CSB will refrain from referring violations for enforcement, unless there is a knowing failure to report.”[10] The CSB indicated that it will use this grace period to establish additional guidance, if necessary.

The CSB notification requirements are in addition to the U.S. Environmental Protection Agency release reporting requirements under 40 CFR § 302.6 (National Response Center, “NRC” notice), any state release reporting requirements under the Louisiana Department of Environmental Quality LAC 33:I.Chapter 39 release reporting requirements; and the Louisiana State Police release reporting requirements under LAC 33:V.Chapter 101.

[1] Public Law 101– 549, 104 Stat. 2399 (November 15, 1990).

[2]  42 U.S.C. 7412(r)(6)(C)(i) and (ii).

[3]  42 U.S.C. 7412(r)(6)(C)(iii).

[4] See Air Alliance of Houston, et al. v. U.S. Chemical Safety and Hazard Investigation Board, 365 F. Supp. 3d 118 (D.D.C. Feb. 4, 2019).

[5] The new regulations and their preamble were published at 85 Fed. Reg. 10074 (Feb. 21, 2020) and will be codified in 40 C.F.R. Part 1604.

[6] See 40 C.F.R. §§ 1604.3; 1604.3. Note that serious injury means any injury or illness that results in death or inpatient hospitalization. The CSB rule definition of inpatient hospitalization is different than the Louisiana State Police rule definition of hospitalization in [insert LSP cite].

[7] 40 CFR § 355.61 (“Extremely hazardous substance (EHS) means a substance listed in Appendices A and B of this part.”).

[8] See 40 C.F.R. § 1604.3(b)(c).

[9] See 40 C.F.R. § 1604.3(e). If applicable, the notification must reference the original NRC identification number. No update or revisions should be sent to the NRC. Also, an extension of 60 additional days may be available for updating information.

[10] 85 Fed. Reg. 10074, at 10092.