CSB Publishes Accidental Release Final Rule

On Friday the Chemical Safety and Hazard Investigation Board (CSB) published a final rule in the Federal Register (85 FR 10074-10095) concerning ‘Accidental Release Reporting’. The notice of proposed rulemaking (NPRM) for this rule was published in December 2019 and I did a blog post on the public comments submitted to that NPRM.

Changes

The CSB only made a limited number of changes to the rule in the final version, they include:

• Definition of serious injury – limited to “any injury or illness that results in death or inpatient hospitalization”;

• Reporting time limit  - changed from 4 hours to 8 hours;

• Clarifying multiple owner reporting requirements – added specific authorization for voluntarily combining reports;

• Clarified term ‘immediately’ in requiring reporting NRC report number to CSB – within 30 minutes of submitting report to NRC;

• Web site reporting – CSB has developed on-line .PDF form for reporting; and

• Amended reporting – adds a limited authority to submit an amended report within 90-days of incident report.

Enforcement

The CSB continues in the preamble to this final rule state that it will not generally refer cases to the EPA for enforcement action for failure to report, “unless there is a knowing failure to report”. In numerous places in the preamble the CSB makes not of its intent to publish some sort of guidance document to aid owner/operators in fulfilling their reporting requirements.

Effective Date

The effective date for this new rule is March 23^rd, 2020.

Commentary

With the changes that the CSB made to the ‘serious injury’ definition it is likely that the number of reports that the CSB will receive under this rule will be closer to the 200 per year estimate that the CSB has provided in their information collection request supporting this rule. I still think that they will receive significantly more than 200, but we will have to wait and see.

The CSB had to publish this final rule in a time-abbreviated manner because of the court order requiring its publication by February 4^th, 2020 (Note: they did miss that date, but they were closer to meeting it than anyone anticipated). One of the problems that arise with that abbreviated schedule is that the OMB’s Office of Information and Regulatory Affairs (OIRA) has not yet had a chance to give their final approval for the ICR supporting this rule. Technically, CSB cannot require anyone to submit an accidental release report until OIRA approves that ICR. There is a good chance that OIRA will approve the ICR before the March 23^rd effective date.

I cannot find any mention of the .PDF reporting form or even the reporting phone number on the CSB.gov website. I expect that between now and March 23^rd we will see appropriate changes on the web site. I will be watching for those changes.