The U.S. Chemical Safety Board (CSB or Agency) recently published a Notice of Proposed Rulemaking for its accidental reporting rule in the Federal Register (Proposed Rule). The CSB was established by the Clean Air Act Amendments of 1990, which directed the Agency, among other things, to investigate and report on any accidental release “resulting in a fatality, serious injury or substantial property damage.” The statute also required the CSB to issue a rule governing the reporting of accidental releases to the CSB under 42 U.S.C. section 7412(r)(6)(C)(iii), which the Agency has not done since it began operations in 1998. Following a lawsuit by advocacy groups, the Agency is now being required by court order to promulgate reporting requirements by February 2020.

The Proposed Rule would require the owner or operator of a stationary source to report to the CSB any accidental release resulting in a fatality, serious injury, or substantial property damages ($1,000,000 or more). The definition of “accidental release” is drawn from the Clean Air Act, meaning an “unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.” However, the CSB has broadened the definitions of “regulated [or] extremely hazardous substances” beyond existing environmental regulations for purposes of the Proposed Rule. The CSB proposes that hazardous substances covered under the Proposed Rule would include “any substance that may cause death, serious injury, or substantial property damages, including but not limited to any ‘regulated substance’ at or below any threshold quantity set by the [Clean Air Act].” The Agency makes clear that “[o]ther laws or rules that define or list ‘hazardous substance(s)’ may provide useful guidance as to what is an “extremely hazardous substance” for purposes of the CSB’s definition, but such lists or associated threshold quantities do not control the CSB’s definition.”

Under the Proposed Rule, reporting a release to the National Response Center (NRC) would satisfy the CSB reporting requirement if the owner or operator “immediately” submits the NRC identification number to the Agency. Otherwise, the owner or operator must report to the CSB within four hours of the incident.

The Proposed Rule also includes an enforcement provision. The CSB can refer a suspected failure to report an accidental release to the Administrator of the U.S. Environmental Protection Agency (EPA), who can pursue administrative, civil, or criminal penalties.

The CSB is accepting public comments on the Proposed Rule until January 13, 2020. A copy of the Proposed Rule is available here