CSB will want incident reports

REPORTS REQUIRED

SAFETY • CSB’S FUTURE IS UNDER THREAT DUE TO BUDGET CUTS BUT IT IS PRESSING AHEAD WITH ITS RULEMAKING ON CHEMICAL INCIDENT REPORTING

THE US CHEMICAL Safety and Hazard Investigation Board (CSB) is a comparatively small agency by federal standards but it packs a big punch. Its FY 2019 budget was only $12m, supporting a staff of 47, but it has still come into the line of fire of a presidential administration eager to cut costs, especially in terms of bureaucracy that it finds burdensome to industry.

Despite the threat of imminent closure, CSB is pressing ahead with its programmes and has sought a budget of $13.14m for the FY 2020 year, including a one-time request of $400,000 for services and equipment to support the new Chemical Incident Reporting Rule initiative.

For those operating in high-hazard chemical industry sectors, it is the new incident reporting rule that could have the biggest impact. A notice of proposed rulemaking (NPRM) was published on 12 December 2019, with comments due by 13 January 2020. In the preamble to the NPRM, CSB notes that its enabling statute, enacted in 1990, provided for the Board to “establish by regulation requirements binding on persons for reporting accidental releases into the ambient air”. To date, that provision has not been fulfilled.

Indeed, there have been a number of remarks made on this lack of action since CSB started work in 1998. In 2004, for instance, the Department of Homeland Security’s (DHS) Inspector General said in a report: “The CSB needs to refine its mechanism for learning of chemical incidents and it should publish a regulation describing how the CSB will receive the notifications it needs.” Another reminder was made by the Government Accountability Office (GAO) in 2008, which included a call for CSB to fulfil its statutory obligation.

Work started on the rule the next year, in response to the GAO report, with CSB issuing an advance NPRM in June. This outlined four potential approaches to accident release reporting, seeking a consensus on how best to move forward. In particular, CSB was eager to hear industry’s opinions on how other federal, state or local rules might provide an appropriate model for its reporting requirement; whether CSB or the National Response Center (NRC) should be the first point of contact; what information should be reported and how soon; and if there should be a distinction between high-consequence incidents and other events. CSB received 27 comments on the ANPRM.

On 4 February 2019, a US District Court judge ordered CSB to issue a rule within 12 months.

NOW FOR THE RULE CSB proposes to add a new part 1604 to title 40 of the Code of Federal Regulations, requiring an owner or operator to notify CSB promptly of any accidental release within the Board’s investigative jurisdiction. “Accidental release” is, in this rule, defined as “an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source”, which is taken from other existing regulations. However, CSB notes, there is no statutory definition of “ambient air” and, while the Environmental Protection Agency (EPA) uses it to mean the atmosphere outside buildings, CSB is also interested in what happens inside structures.

CSB DOES A LOT OF SAFETY-CRITICAL WORK AT A SMALL

PRICE BUT NEEDS RAPID ACCESS TO INCIDENT REPORTS

IF IT IS TO BE ABLE TO DO THAT WORK TO THE BEST

Among the comments received on its ANPRM, a number urged the Board to avoid duplicative reporting, suggesting that NRC should be the first point of contact. CSB is alert to this issue but it is also aware that the overlap between CSB and NRC is not consistent and there is no way to make sure that information reported to NRC will satisfy CSB’s requirements. In the proposed rule, reports will need to be made to CSB directly, unless they have already been submitted to NRC; CSB will work with NRC to ensure that any relevant information is passed on.

The proposed rule includes a requirement for a report to be made within four hours of it happening. While CSB is aware that, in the initial aftermath, owners and operators will have other priorities, it is also concerned that it needs to make a rapid decision as to the need to deploy its own investigators; CSB says it has learned from experience that it is often crucial to begin an investigation before physical evidence is disturbed and while witnesses still have evidence fresh in their minds. Furthermore, the rule allows for reports to be revised at a later point.

The rule continues with the details of the information that will be required and the enforcement provisions in the event that a report is not filed, although CSB says it will not refer violations for one year after the effective date of the rule, to allow time for compliance education.

HCB will report on this topic again, once the NPRM is in the form of a final rule. www.csb.gov