Comments on CSB Spill Reporting NPRM

Last Monday the comment period closed on the Chemical Safety Board’s (CSB) notice of proposed rulemaking (NPRM) for “Accidental Release Reporting”. The CSB did not allow the Federal eRulemaking Portal to publish any of the comments until the comment period was closed. A total of 48 comments were reported as being submitted.

The number is certainly higher than that because the comments I submitted (comment tracking # 11kk33--99duee--jj77559) have not yet been posted to the Docket and it was almost certainly one of the first comments posted. I also posted a portion of those comments to the OMB’s Office of Information and Regulatory Affairs as a comment about the information collection request (ICR) included in the NPRM.

There was no evidence of any letter writing campaigns associated with this rulemaking. Instead of listing all of the agencies, corporate entities and organizations that commented on this NPRM I will list the ones that I have included reference to in this blog post. Many of the comments being made duplicate portions of other submissions, so only the first response that I see that makes that comment will receive recognition for the information here. NOTE: all links in this list are .PDF download links.

United States Beet Sugar Association, et al (USBSA);

The Fertilizer Institute (TFI);

The Aluminum Association (TAA);

The Chlorine Institute (TCI);

ORC HSE;

American Chemistry Council (ACC);

The Environmental Energy Alliance of New York (EEANY);

American Forest & Paper Association (AFPA);

REGFORM;

Air Alliance Houston, et al (AAH);

Consumers Energy Company (CEC);

AFL-CIO, et al (AFL);

Institute of Scrap Recycling Industries (ISRI);

Extremely Hazardous Substance

USBSA noted that the term ‘extremely hazardous substance’ is undefined and unnecessarily broadens the reporting requirements. EEANY recommends using the definition “found in 40 CFR 355 [presumably §355.61] (including Appendix A and B)”.

REGFORM recommends that: “The definition should also make clear that consequences arising from the physical nature of the substance (e.g., temperature, mass, abrasive qualities) are not reportable.”

Overly Broad Definitions

USBSA notes that the definition of ‘serious injury’ is taken from the OSHA record keeping requirements [quoted 29 CFR 1904, but apparently referred to 29 CFR 1904.7(b)(vi)], not the OSHA reporting requirements [quoted 29 CFR 1904.39, but that only applies to “fatalities, hospitalizations, amputations, and losses of an eye”] .

TCI suggested that “the reporting criteria better align with internal criteria CSB uses to deploy investigative teams”. This would be accomplished by removing “‘medical treatment beyond first aid’ and ‘any injury or illness’ bullets” from the proposed §1604.2.

ACC recommends excluding “business interruption costs as a criterion for accident reporting under the rule”.

AFPA notes: “The proposed rule apparently would require a direct report to the CSB in situations where the CSB would require a report and a report to the NRC is not required by other laws.”

In reference to the definition of ‘ambient air’ in the proposed §1604.2 including ‘the atmosphere inside or outside a stationary source’ AFPA notes: “Congress made it clear in §112(r)(6)(E) of the CAA that the CSB was to conduct its activities in a way that minimizes duplication of activities conducted by OSHA”.

ISRI recommends that “The CSB must clarify that an explosion is not per se an “accidental release”, whether in the preamble of the final rule or by regulatory language.”

In order to reduce regulatory redundancy, ISRI recommends that: “The CSB needs to remove “death” from the proposed definition of “serious injury”.

Duplicative Reporting Requirements

USBSA notes that the rulemaking will require a duplicative reporting requirement if the incident requires reporting to OSHA under 29 CFR 1904.39.

TFI recommends that CSB “utilize the NRC reporting platform to satisfy the court mandate” instead of setting up a separate reporting process. Further, TAA recommends changing the NRC identification number language in the proposed §1604.3(b) to read:

“the CSB reporting requirements are satisfied by submission of the report to the NRC as upon receipt of the report, the NRC will provide the report’s NRC identification number to the CSB”

ORC HSE makes the point that:

“Finally, the CSB clearly does not have the resources needed to utilize the flood of information that they would receive from the submissions required by the proposal, nor is it likely that the Agency would receive sufficient additional resources any time in the foreseeable future.”

EEANY recommends that:

“A single reporting call-in center (at a minimum to satisfy federal requirements) that alerts all necessary authorities using a standardized template for data collection and serves to satisfy all of the existing reporting authorities is suggested, perhaps by making changes to the National Response Center system.”

Reporting Window

TCI recommends extending the proposed ‘4-hour’ reporting requirement to ’12-hour’ to allow for instances where the organization may not be cognizant of a covered incident because an employee seeks medical attention after leaving work. ACC recommends using the OSHA 8 hour and 24 hour reporting requirements of §1904.39.

Needed Definitions

TCI requests a definition of the term ‘evacuation’ used in the rule; should it cover ‘shelter-in-place’ or those denied entry into the ‘evacuation area’?

CEC requests a definition of the term ‘facility identifier’; noting that: “If it is referring to a regulatory reporting facility ID, then it is unclear which reporting ID is being referred to, as different agencies have different IDs.”

Expand the Scope of the Rule

AAH has an extended discussion of how the scope of the current rule should be expanded to increase the CSB’s ability to “permit more accurate surveillance of chemical incidents”. They also recommend that the reported data be entered into a publicly searchable database.

AFL recommends including reporting requirements for ‘near misses’.

On-Line Reporting

ISRI recommends that: “The CSB should add to proposed §1604.3(c) an option to report by web-based form established by the CSB.”

Commentary

First off, CSB is going to have a tough time meeting its February 5^th court-ordered publication of the final rule on this topic. This was the reason for the short comment period as explained here [.PDF download link] by CSB. I suspect that they may have started formulating the final rule preamble as they were receiving comments; it would be the only hope that they have of meeting the deadline. Unfortunately, they will still have to get through the OMB review process before they can publish their rule.

There seems to be some confusion as the purpose of this reporting rule (beyond just satisfying a legal requirement) and CSB is at least partially to blame for that confusion. If CSB is intending to utilize these reports to establish a comprehensive database for evaluating the status of chemical incidents (as they proposed in their ANPRM preamble) the more expansive definitions involved in the NPRM make sense. If the reporting is solely to provide CSB with information with which to decide to initiate an investigation, more limited definitions would make more sense given the small agency size and budget.

The one definition that most industry commenters seized upon was that missing definition for the term ‘extremely hazardous substance’. It seems to me that the reason that CSB did not use the EPA definition or that term is that the Board is tasked with providing the Administrator with recommendations for updating the EPA’s list of such substances. This makes the operational rather than a list-based definition of the term more reasonable.

One final comment; The Houston Air Alliance, et al, comment is well worth reading even if it is more than a little adventurous in what it expects to see from any CSB reporting rule. This is what the environmental/safety advocacy community would like to see the CSB tackle, particularly their desire for a publicly searchable database of chemical incidents. Industry observers should carefully read that document to see how reasonable (in comparison) the CSB rule really is.