The United States Chemical Safety and Hazard Investigation Board, or CSB for brevity, has published requirements for Incident Reporting with a new Incident Reporting Rule Submission Form. Note that the CSB form also lists itself as “CSB Accidental Release Form”. The Incident Reporting Rule Submission Form will be the term used in this discussion, as it’s the link on the CSB website (listed at the end of this post).
The CSB was authorized through the Clean Air Act Amendments of 1990, and as such has regulatory authority to require reporting on incidents :
The statute directs the CSB, among other things, to 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 and recommend measures to reduce the likelihood or the consequences of accidental releases and propose corrective steps to make chemical production, processing, handling and storage as safe and free from risk of injury as is possible. 42 U.S.C. 7412(r)(6)(C)(i) and (ii).
https://www.csb.gov/assets/1/6/2020-02418.pdf
While the legislation enabling the CSB was promulgated in 1990, the Board itself did not start operations until 1998. No incident reporting was formally required for more than twenty years, but in 2019, a U.S. District Court made a judgment for the CSB to start requiring the reporting [Air Alliance of Houston, et al. v. U.S. Chemical Safety and Hazard Investigation Board, 365 F. Supp. 3d 118 (D.D.C. Feb. 4, 2019)]. Rulemaking followed in December 2019, and the final rule was published in the Federal Register, becoming effective in March 2020.
The CSB has now published the Incident Reporting Rule Submission Form. Note that the form itself uses the name “CSB Accidental Release Form”. For this discussion, the term “Incident Reporting Rule Submission Form”will be used, as this is the lead-in webpage name on the CSB site (listed below).
What does this mean for companies in the Process Industries ?
First, it’s important to note that the Chemical Safety Board did not limit the materials of concern in a release to materials defined through the Process Safety Management (29 CFR 1910.119) or Risk Management Plan (40 CFR Part 68) standards.
§ 1604.2 Definitions
Extremely hazardous substance means any substance which may cause death, serious injury, or substantial property damage, including but not limited to, any ‘‘regulated substance’’ at or below any threshold quantity set by the Environmental Protection Agency (EPA) Administrator under 42 U.S.C. 7412(r)(5).
https://www.csb.gov/assets/1/6/2020-02418.pdf
The Chemical Safety Board set out the conditions of a release with the definition :
Accidental release means an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.
What’s more, in the on Page 10083 in the Preamble to the regulation, the Chemical Safety Board states, “Nor should the CSB definition be limited by threshold quantity limits set by other laws.”
The use of the term “…any substance which may cause death, serious injury, or substantial property damage, including but not limited to, any ‘‘regulated substance’’…” along with no minimum or threshold quantity sets out an expansive definition as to what facilities must submit incident reports to CSB, essentially any location where an accidental release meets any of three specific trigger criteria.
CSB has defined the three trigger criteria where reporting is required for an incident.
§ 1604.3 Reporting an accidental release
(a) The owner or operator of a stationary source must report in accordance with paragraph (b) or (c) of this section, any accidental release resulting in a fatality, serious injury, or substantial property damage.
The first item of “fatality” is obvious, but the succeeding criteria are clearly defined in the regulation.
§ 1604.2 Definitions
Serious injury means any injury or illness that results in death or inpatient hospitalization.
The third item of “substantial property damage” is a two-step definition
Property damage means damage to or the destruction of tangible public or private property, including loss of use of that property.
Substantial property damage means estimated property damage at or outside the stationary source equal to or greater than $1,000,000.
It is important to note that property damage includes “loss of use”. The Preamble to the regulation on Page 10084 includes :
The CSB did not explicitly make business interruption costs a reportable item, but if property damage leads to business interruption, that should be factored into calculating the overall costs of such damage.
In short, any accidental release with an Extremely Hazardous Substance that hits one or more of the trigger criteria of fatality, serious injury, or substantial property damage must be reported to the Chemical Safety Board.
The CSB has provided that reporting can be done by three mechanisms :
- Telephone contact with the CSB, completing answers to specific questions;
- E-mail submission of the Incident Reporting Rule Submission Form to the CSB;
- Transmission by e-mail of a National Response Center NRC report identification number to the CSB.
The incident must be reported within one of two time limitations (emphasis added below for the time periods):
§ 1604.3 Reporting an accidental release
(b) If the owner or operator has submitted a report to the National Response Center (NRC) pursuant to 40 CFR 302.6, the CSB reporting requirement may be satisfied by submitting the NRC identification number to the CSB within 30 minutes of submitting a report to the NRC.
(c) If the owner or operator has not submitted a report to the NRC and notified the CSB under paragraph (b) of this section, the owner/operator must submit a report directly to the CSB within eight hours of the accidental release and must include the required information listed in § 1604.4. A report may be made by email to: report@csb.gov, or by telephone at 202–261– 7600.
It is important to note that the eight hour time limit only applies when no report is submitted to the National Response Center including the subsequent notification of CSB with the NRC identification number. The thirty-minute clock starts ticking when a report is submitted to the National Response Center.
There are provisions in the regulation for updating reports to the Chemical Safety Board, allowing an update for up to thirty days, and corrections or revisions with documented reasons for an additional sixty days.
The Chemical Safety Board has a dedicated webpage for Incident Reporting, which should be used to check for the most up-to-date information on reporting and contact data for telephone and/or e-mail:
https://www.csb.gov/incident-reporting-rule-submission-form/