Thursday, December 12, 2019

CSB Publishes Accidental Release Reporting NPRM

Today the Chemical Safety and Hazard Investigation Board (CSB) published a notice of proposed rulemaking (NPRM) in the Federal Register (84 FR 87899-67910) to establish an accidental release reporting requirement under 42 USC 7412(r)(6)(C). An advanced notice of proposed rulemaking for this action was published on June 25th, 2009. This rulemaking is moving forward as a result of Federal District Court order in Air Alliance Houston et al v. U.S. Chemical Safety and Hazard Investigation Board.

The rule would add a new part to 42 CFR; Part 1604. The rule would require the owner/operator of any stationary source to report “any accidental release resulting in a fatality, serious injury or substantial property damages” {new §1604.3(a)}.


Section 1604.2 provides a number of definitions of terms used in the rule. The definitions include:

• Accidental release;
• Ambient air;
• Extremely hazardous substance;
• General public;
• Owner or operator;
• Property damage;
• Regulated substance;
• Serious injury;
• Stationary source; and
• Substantial property damage.

Two of those definitions are taken directly from 42 USC 7412(r). The remainder are ‘new’ definitions that pertain only to this section. Two of those new definitions directly affect the reach of this new reporting requirement: ‘serious injury’ and ‘substantial property damage’. This is due to the scope of the Board’s jurisdiction in §7412(r)(6)(C)(i):

The Board [CSB] shall “investigate (or cause to be investigated), determine and report to the public in writing the facts, conditions, and circumstances and the cause or probable cause of any accidental release resulting in a fatality, serious injury or substantial property damages”.

The term ‘serious injury’ would mean any injury that results in:

• Death;
• One or more days away from work;
• Restricted work or transfer to another job;
• Medical treatment beyond first aid;
• Loss of consciousness; or
• Any injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

The term ‘substantial property damage’ means “estimated property damage at or outside the stationary source equal to or greater than $1,000,000.

Reporting Requirements

Section 1604.3 requires that an owner or operator of a stationary source provide a report of any “any accidental release resulting in a fatality, serious injury or substantial property damages” {§1604.3(a)}. Any such report that is provided to the National Response Center (NRC) under 40 CFR 302.6 does not have to be reported directly to the CSB. Any report not provided to the NRC would be sent to the CSB via “email to:, or by telephone at 202-261-7600” {§1604.3(c)}. Email or snail mail may be used to provide CSB with revised or updated information regardless of where the original report was sent.

Section 1604.4 provides a detailed list of what information is to be included in reports under this part. If any of that information was not provided in a reporting to the NRC (there are no specified information requirements in §302.6), presumably that information would be required to be directly supplied to the CSB.

Section 1604.5 provides for the enforcement of the requirements of Part 1604 under authority of 42 USC 7413 and 42 USC 7414.

Information Collection Request

As with all new rulemakings, the CSB has included an information collection request (ICR) in this NPRM. The new ICR includes the following burden estimates:

• Estimated responses per year: 200
• Hourly reporting burden per year: 50 hours (15 minutes per response)
• Dollar reporting burden per year: $1,860.00 ($37.20 average hourly wage per respondent)

Public Comments

The CSB is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (; Docket # CSB-2019-0004). Comments need to be submitted by January 13, 2020.


First off, lets start with the comment deadline. This rulemaking is going to affect a large segment of the manufacturing and retail industries (not just the chemical industry). While the monetary cost of reporting is rather low, the cost of putting compliance activities into place could be significant and could affect a number of small businesses that do not normally consider chemical incident reporting to be a concern. I expect that we will see any number of business advocacy groups request an extension of the comment period to a more normal 60-day period, particularly given the holiday season.

Next, I am not sure where the CSB came up with the unrealistic ‘200 annual responses’ for the ICR portion of the NPRM. Earlier in the preamble during the ‘Small Entity Impact’ portion of the analysis, the CSB notes that:

“In order to estimate the percentage of reports that would likely be filed by small businesses each year, the CSB reviewed the 1,923 accidental releases [emphasis added] to determine how many releases could be matched to a NAICS code and how many distinct NAICS codes were represented.”

There is no mention of what database was used for that analysis, but according to footnote 6 that data was accumulated over a 10.5-year period. That would appear to be where the ‘200 responses per year’ estimate comes from. I suspect that the database being used is woefully underreporting the types of releases that would be required to be reported under the proposed rule.

Using the ‘serious injury’ definition provided in the new §1604.2 any OSHA reportable injury that was due to a chemical release would require a CSB report. In fact, many injuries that would not be OSHA reportable (those not resulting doctor visits yet not resorting to prescribed medications for instance) would meet the ‘medical treatment beyond first aid’ standard requiring CSB incident reporting. None of the chemical facilities that I worked at in over 20 years in the industry would have gone more than six months or so without an incident that would have been reportable under that standard. The least-safe facility would have had to make a CSB report at least once a week under this standard.

I have a Google® search that I use to track chlorine releases and at least once a week it returns a local news article about a pool-chemical style incident where chlorine gas was released due to improperly mixed chemicals where at least one person needed to seek medical attention. A similar search for ammonia releases returns frequent news reports for small leaks from commercial refrigeration units that result in medical attention or hospital stays. The universe of the reports that would be required is many orders of magnitude larger than what CSB is expecting in this NPRM.

Now, I do not want anyone to misunderstand the comments above. I think that CSB is underestimating the extent of the problem, but that is because no one is attempting to collect the data. This data collection effort is, in my opinion, very necessary. As a society we need to have a better understanding of the nature of the chemical exposure problems that we face.

I do not think that CSB has any real need to ‘investigate’ the vast majority of these incidents. They have neither the manpower nor the money for such an extended effort. They are not able to investigate more than a dozen or so major chemical incidents each year and those investigations are where the bulk of the CSB’s efforts needs to be concentrated.

But, with a more complete data base of accidental chemical exposures, CSB could undertake one or two characteristic investigations each year that would look at one or two chemicals or chemical classes that result in a large number of injuries each year. That type of investigation could result in changes in chemical communications or chemical handling or even removing dangerous chemicals from commercial (as opposed to industrial) use. And that kind of investigation could prevent as many injuries or save as much money as any major chemical investigation that the Board undertakes.

To make that work, however, we need to get passed email reports (or even worse, snail-mail reports). The reporting structure needs to be more accessible and easier to ensure that more people are providing the reports and that the information being collected is more complete and useful. The way to do this would be to set up a web application where a form was provided with check-boxes and minimalistic fill-in-the-blank spaces. The resulting report would be readily accessible for machine-reading and analysis with human alert notifications for the worst incidents.

Finally, the regulations (and the form I described above) needs to make clear the fact that 42 USC 7412(r)(6)(G) makes is absolutely clear that:

“No part of the conclusions, findings, or recommendations of the Board relating to any accidental release or the investigation thereof shall be admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in such report.”

Reports submitted to CSB under §1604 cannot be used (since they are part of the investigatory tools of the Board) against the party making the information submission. This needs to be made clear in this NPRM. A new section needs to be added to this proposed part:

§1604.7 Subsequent us of accidental release reporting information

In accordance with 42 USC 7412(r)(6)(G) none of the information provided in reports required under this part shall be admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in such report.

NOTE: A copy of this blog post will be filed a comment on the docket for this rule and will be provided to the OMB’s Office of Information and Regulatory Affairs as a comment on the included ICR.

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