Tuesday, February 21, 2023

Explosions and CSB Chemical Incident Reporting

An explosion and fire at a manufacturing facility in Oakwood Village, OH yesterday raises some interesting questions about chemical release reporting requirements under Chemical Safety Board regulations, 40 CF 1604. Current news reporting (see here, here, and here for example) all state that the cause of the initial explosion that caused the resulting large scale fire at the facility and resulted in one death and 13 serious injuries is unknown at this time. Since it is not known at this time if hazardous chemicals were involved in the incident, does this mean the facility does not have to report this incident to the CSB?

The CSB has actually addressed this type of a situation in their “CSB Guidance on 40 C.F.R. Part 1604” that was issued last summer. In response to FAQ 2.2.1 on page 15, the CSB notes that:

“An accidental release of water or air could meet the criteria of an extremely hazardous substance. The Accidental Release Reporting Rule states that the owner or operator of a stationary source must report any accidental release resulting in a fatality, serious injury, or substantial property damage. The rule’s definition of “extremely hazardous substance” includes any substance that alone, or in combination with other substances or factors, causes death, serious injury, or substantial property damages. The manner in which a substance inflicts such consequences may vary broadly (fire, explosion, effects of toxicity, asphyxiation, etc.) but what defines the substance as “extremely hazardous” is its demonstrated impact on people and the environment upon being accidentally released from a stationary source into the ambient air, as those terms are defined.”

This means that even if the explosion was a boiler explosion that only released steam (water being a chemical, H2O), if the results of that explosion includes a death(s), serious injuries, or extensive property damage, then the facility would have to report the incident. So it would seem that the facility in Oakwood Village yesterday would have been required to report this incident to the CSB within eight hours of its occurrence. I suspect, however, that the timely reporting of this incident to the CSB was probably the furthest thing from the concerns of the facility management.

An interesting hypothetical question: would a terrorist bombing of a facility trigger reporting requirements under §1604? This is not specifically addressed in the CSB guidance document, but I suspect that the CSB would probably pass on requiring reporting of a terrorist bombing incident, unless the incident resulted in the release of other chemicals that caused reportable consequences under the rule.

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