Savvy facility EHS personnel understand that changes to the types, amounts, and locations of chemicals being used or created bring consequent reporting obligations and highlight the need for a robust management of change (MOC) system to ensure compliance. In addition to Tier II, Emergency Planning Notification, and Safety Data Sheets (SDS) reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA), these changes can impact requirements under numerous other regulations:
- Toxic Release Inventory (TRI) reporting
- Risk Management Planning (RMP) and Process Safety Management (PSM) applicability
- Toxic Substance Control Act (TSCA) Chemical Data Reporting (CDR)
- TSCA High Priority Chemical Program
- TSCA Premanufacture Notices (PMN)
- TSCA Significant New Use Restriction (SNUR) compliance
- Stormwater Pollution Prevention Plans (SWPPP)
- Hazardous Waste determinations
- Resource Conservation and Recovery Act (RCRA) Contingency plans
- Spill Prevention, Control, and Countermeasure (SPCC) plans
- State/National Pollution Discharge Elimination System (S/NPDES) or Publicly Owned Treatment Works (POTW) permit change notification
- Slug Control plans
- Occupational Safety and Health Act (OSHA) Emergency Response plans
- Department of Homeland Security's Chemical Facility Anti-Terrorism Standards (CFATS)
- Internal spill/release reporting procedures
Recently, the U.S. Environmental Protection Agency (EPA) has been quite active in the area of toxic chemicals, seeking funds from manufacturers of High Priority Chemicals, continuing to promulgate SNURs, and adding chemicals to the TRI list. Recently, the Chemical Safety and Hazard Investigation Board (CSB), an independent federal agency charged with investigating serious chemical incidents, has been raising its profile on this front as well. In the next three articles, Trinity's experts provide updates on how EPA has forged ahead on matters involving chemical releases and chemical safety. Click on the links below to read the other two articles in this series:
Independent CSB Requires Separate Reporting of Accidental Chemical Releases
On the front of reporting accidental chemical releases, as of March 23, 2020, facilities are required to comply with additional chemical release reporting requirements at 40 CFR 1604. The new reporting rule outlines when facility owners/operators are required to file reports with the CSB about certain accidental air releases and what must be communicated in the reports. The purpose of the rule is to ensure that the CSB receives (within eight hours) accurate reports of any accidental release that results in a fatality, a serious injury, or substantial property damage. This timing is consistent with the amount of time allowed under OSHA requirements for fatality reporting. However, if the spill is reported to the National Response Center (NRC) first, due to the spill exceeding the CERCLA Reportable Quantity (RQ), the NRC spill ID number must be provided to the CSB within 30 minutes. NRC reportable spills are due immediately (i.e., within 15 minutes of management awareness).
The new CSB requirements are distinct from and in addition to reporting requirements established under other laws, such as CERCLA Section 103, EPCRA Section 304, and OSHA. Although much of the terminology used in the Accidental Release Reporting Rule may be familiar to EHS professionals, the definitions used by CSB are significantly different and broader than those used in other environmental regulations. Thus, it is important that facilities understand and integrate these new requirements into their compliance procedures.
The following information must be included in the accidental release report to CSB:
- Name and contact information for the owner/operator
- Name and contact information for the person making the report
- Location information and facility identifier (EPA facility ID number)
- Approximate time of the accidental release
- Brief description of the accidental release
- An indication as to whether any of the following occurred: fire, explosion, death, serious injury or property damage
- Name of the material(s) involved in the accidental release, the Chemical Abstract Service (CAS) number(s), or other appropriate identifiers
- If known, the amount of the release, the number of fatalities, and the number of serious injuries
- Estimated property damage at or outside the facility
- Whether the accidental release resulted in an evacuation order impacting the general public; and, if so if known:
- Number of persons evacuated
- Approximate radius of the evacuation zone
- Type of person subject to the evacuation order (employees, members of the general public, or both)
The CSB definition of “serious injury” closely aligns with OSHA's reporting requirements: “any injury or illness that results in death or in-patient hospitalization,” where “in-patient hospitalization” is defined as “a formal admission to the in-patient service of a hospital or clinic for care.”
When there are multiple owners/operators, the owner/operators may agree in advance or at the time of release to a single, consolidated report; however, any such report should include information from/about all relevant owners/operators. Owners/operators can submit revised or updated reports to the CSB within 90 days if the submitter can reasonably explain why the revision or update could not have been made within the standard 30 days. The CSB has prepared an editable PDF form for reporting purposes.
For one year following the effective date of the rule, the CSB will refrain from referring violations for enforcement to EPA, unless the owners/operators knowingly failed to report.
Some key implications of the rule are outlined below.
- Permitted releases and releases below RQ levels are reportable to CSB.
- The CSB did not establish a definitive list of reportable substances.
- A release could become reportable to CSB months after the event.
- OSHA-only reportable releases are reportable to CSB.
- CSB reports are publicly available via FOIA.
Unlike other regulations that condition reporting on “reportable quantity” thresholds for lists of regulated substances, the Accidental Release Reporting Rule contains no such limitation. Rather, the regulation uses a consequence-based threshold for reporting. In other words, reporting is required whenever there is an accidental release that results in death, serious injury, or substantial property damage, regardless of the quantity released or whether the substance has traditionally been considered hazardous.
Key definitions under the Reporting Rule are as follows:
Serious injury - Any injury or illness that results in death or inpatient hospitalization (formal admission to the inpatient service of a hospital or clinic), while substantial property damage means estimated damage to, or the destruction of, tangible property (including loss of use) equal to or greater than $1 million.
Stationary source - Includes any “buildings, structures, equipment, installations, or substance-emitting stationary activities” which belong to the same industrial group (SIC classification), are located on one or more contiguous properties, are under the control of the same person (or persons under common control), and from which an accidental release may occur. Notably, a facility need not be a new, significant or large source of air emissions to qualify as a stationary source under the reporting rule.
Accidental release - An unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air. An extremely hazardous substance is any substance which “may cause death, serious injury, or substantial property damage” regardless of whether the amount released falls below a threshold quantity established by EPA and regardless of whether the substance, on its own, is considered hazardous. Although other laws or rules that define or list hazardous substances may provide useful guidance, such lists do not control the CSB's definition of extremely hazardous substance. Instead, CSB's definition is consequence-based - if a release of a substance causes death, serious injury, or substantial property damage, it is likely reportable.
Additionally, under the CSB's definition of ambient air, releases both within and outside the facility are potentially reportable. Contrary to the definition used by EPA, the Accidental Release Reporting Rule more broadly defines ambient air as “any portion of the atmosphere inside or outside a stationary source.” Thus, reporting of an otherwise qualifying release is required regardless of whether the release is wholly contained within a facility.
Who is required to report?
The owner or operator of the stationary source is required to report accidental releases covered by the regulation. The regulation specifies that multiple owners or operators may agree to a single, consolidated report on behalf of all parties; however, if the owners/operators cannot agree on who should file the consolidated report, all owners and operators must file individual reports.
How do I report?
Reporting may be made by: 1) submitting the NRC identification number to the CSB within 30 minutes of submitting a report to the NRC (applicable only in cases where the incident is reported to the NRC); or, 2) submitting a report containing all required information to the CSB within eight hours of the accidental release. You can email your report or call the CSB at 202.261.7600. Information provided in the report may be revised or updated within 30 days.
Importantly, merely reporting the incident to the NRC will not fulfill an owner/operator's reporting responsibility under the regulation. Rather, the owner/operator must also submit the NRC identification number to the CSB within 30 minutes of submitting the report to NRC. If NRC reporting is not required (or the 30-minute window is missed), the owner/operator must submit a report directly to the CSB within eight hours of the accidental release.
What happens if I don't report?
Facility owners/operators that fail to report covered accidental releases, or otherwise violate the Accidental Release Reporting Rule, may be subject to administrative penalties, as well as civil and criminal enforcement. Although the CSB is not an enforcement agency, the CSB may refer suspected reporting violations to EPA for enforcement.
To allow adequate time for compliance education, and to address potential compliance issues, the CSB has indicated that it will provide a one-year grace period on enforcement. During this period, the CSB will contact owners and operators that the CSB believes have failed to file a required report. If the owner/operator files a report immediately after being notified, the CSB will not refer the failure to report to EPA. This grace period does not apply to owners/operators that knowingly fail to report.
Implications for facilities
The CSB's new Accidental Release Reporting Rule creates a new layer of potential reporting of chemical releases. Exemptions and threshold quantity limits established under other release reporting provisions are not available under the CSB's new regulation. Thus, facilities may find it necessary to report releases and incidents that were previously non-reportable.
Regardless of the grace period offered, owners/operators should take action now to educate employees on the requirements of the new regulation and incorporate these new reporting requirements into their compliance programs.
This first article in our Chemical Reporting and Compliance Basics series covered accidental chemical release reporting. The second article discusses TRI program changes affecting all kinds of releases. The third article covers TSCA, which is intended to help EPA monitor the safety of chemicals at the point of their manufacturing, importing, and during their actual use by consumers, even in the absence of a release.