Accidental Release Reporting
| Citation | 84 FR 67899 |
| Record Number | 2019-26495 |
| Published date | 12 December 2019 |
| Court | Chemical Safety And Hazard Investigation Board |
Federal Register, Volume 84 Issue 239 (Thursday, December 12, 2019)
[Federal Register Volume 84, Number 239 (Thursday, December 12, 2019)]
[Proposed Rules]
[Pages 67899-67910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26495]
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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD
40 CFR Part 1604
[Docket Number: CSB-2019-0004]
RIN 3301-AA00
Accidental Release Reporting
AGENCY: Chemical Safety and Hazard Investigation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed rule describes when an owner or operator is
required to file a report of an accidental release and the required
content of such a report. The purpose of the proposed rule is to ensure
that the CSB receives rapid, accurate reports of any accidental release
that meets established statutory criteria.
DATES: Comments must be submitted by January 13, 2020.
ADDRESSES: You may send comments, identified by docket number and/or
RIN number, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include docket number and/or
RIN number, 3301-AA00, in the subject line of the message.
Mail: Chemical Safety and Hazard Investigation Board, 1750
Pennsylvania Ave. NW, Suite 910, Washington, DC 20006, ATTN: Reporting
Rule Comment.
Instructions: All submissions must include the agency name and
docket number, CSB-2019-0004, or Regulatory Information Number, 3301-
AA00, for this rulemaking. For detailed instructions on sending
comments and additional information on the rulemaking process, see the
``Public Participation and Request for Comments'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rule, call or email Mr. Thomas Goonan, General Counsel of the
Chemical Safety and Hazard Investigation Board, by telephone at 202-
261-7600, or by email at [email protected].
SUPPLEMENTARY INFORMATION: The enabling statute of the Chemical Safety
and Hazard Investigation Board (CSB) provides that the CSB ``shall
establish by regulation requirements binding on persons for reporting
accidental releases into the ambient air subject to the Board's
investigative jurisdiction.'' 42 U.S.C. 7412(r)(6)(C)(iii). The
proposed rule is intended to satisfy this statutory requirement.
Background
The CSB was established by the Clean Air Act Amendments of 1990.
The statute directs the CSB, among other things, to investigate and
report on any accidental release ``resulting in a fatality, serious
injury or substantial property damages.'' 42 U.S.C. 7412(r)(6)(C)(i)
and (ii). The statute also requires the CSB to issue a rule governing
the reporting of accidental releases to the CSB. 42 U.S.C.
7412(r)(6)(C)(iii).
Although the CSB's enabling legislation was enacted in 1990, the
CSB did not begin operations until 1998. Since 1998, the CSB has not
promulgated an accidental release-reporting requirement as envisioned
in the CSB enabling legislation.
In 2004, the DHS Inspector General recommended that the CSB
implement the statutory reporting requirement: ``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.'' (Department of Homeland Security, Office of
Inspector General, ``A Report on the Continuing Development of the U.S.
Chemical Safety and Hazard Investigation Board,'' OIG-04-04, Jan. 2004,
at 14.) In 2008, the Government Accountability Office (GAO) also
recommended that the CSB fulfill its statutory obligation by issuing a
reporting rule. (U.S. Government Accountability Office, ``Chemical
Safety Board: Improvements in Management
[[Page 67900]]
and Oversight Are Needed,'' GAO-08-864R, Aug. 22, 2008, at 11.)
On June 25, 2009, the CSB submitted an Advanced Notice of Proposed
Rulemaking (ANPRM) entitled ``Chemical Release Reporting,'' at 74 FR
30259-30263, June 25, 2009. The ANPRM outlined four potential
approaches to accidental release reporting and requested additional
information for developing a proposed rule. Specifically, the CSB
sought comments in response to several specific questions, including
but not limited to the following:
Are there Federal, State, or local rules or programs for
reporting chemical or other types of incidents that would be an
appropriate model for the CSB to consider in developing a reporting
requirement?
Should an initial report be made to the CSB or the
National Response Center?
What information should be reported to the CSB?
How soon after an accident should reporting occur?
Should the rule be designed with distinct requirements for
rapid notification of high-consequence incidents and more systematic
(and slower) notification of other incidents?
74 FR 30262.
In response to the ANPRM, the CSB received 27 comments from a
variety of interested parties. These comments are included as part of
the docket for this rulemaking and labeled for reference as CSB-
ANPR0901-000001 to CSB-ANPR0901-000133.
On February 4, 2019, a U.S. District Court judge ordered the CSB to
issue a rule requiring the reporting of accidental chemical releases to
the CSB. See 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). The court directed the CSB to promulgate a final rule within 12
months of the date of the court's final order.
Public Participation and Request for Comments
Submitting Comments
If you submit a comment, please: Include the docket number for this
rulemaking (USCSB-2019-0004) and/or the RIN number, 3301-AA00; indicate
the specific section of this document to which each comment applies,
and provide a reason for each suggestion or recommendation. We
recommend that you include your name and either a mailing address, an
email address, or a phone number in the body of your document so that
we can contact you if we have questions regarding your submission.
Online
To submit your comments online, go to http://www.regulations.gov
and find the CSB's proposed rule. You can find a rule on
regulations.gov by entering a keyword, title, RIN number, or document
ID in the search area on the homepage and click the ``Search'' button.
On the ``Search Results'' page, you can narrow your results with the
filters on the screen. Once you find the proposed rule, click its title
to view the ``Document Details'' page.
Once you locate a document that is open for comment, click the
``Comment Now!'' button on either the Search Results or the Document
Details page. This will display the Comment Form. You can enter your
comment on the form, and attach files (up to 10 MB each). Be sure to
complete all required fields. Please note that some information entered
on the web form may be viewable publicly. These fields are identified
by the globe icon. Once you reach the ``Your Preview'' screen, the
information that will be viewable publicly is displayed directly on the
form under the section titled: ``This information will appear on
Regulations.gov.'' To complete your comment, you must first agree to
the disclaimer and check the box. This will enable the ``Submit
Comment'' button.
Upon completion, you will receive a Comment Tracking Number for
your comment. To learn more about comment submission, visit the
``Submit a Comment'' section of the ``How to Use Regulations.gov''
pages.
Mail or Hand Delivery
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know if your mail reached the CSB, please enclose a stamped,
self-addressed postcard or envelope.
We will consider all comments and material received during the
comment period and may change this proposed rule based upon your
comments.
Viewing Comments and Documents
To view comments, as well as documents described in this preamble
as being available in the docket, go to http://www.regulations.gov. If
you do not have access to the internet, you may view the docket online
by visiting the Chemical Safety and Hazard Investigation Board, 1750
Pennsylvania Ave. NW, Suite 910, Washington, DC 20006, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. Please call
202-261-7600 in advance to schedule an appointment.
Regulatory Requirements
Unfunded Mandates Reform Act (2 U.S.C. Ch. 25)
The Act does not apply to independent regulatory agencies, 2 U.S.C.
658(1). In any event, the proposed rule does not contain a Federal
mandate that may result in the expenditure by state, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year. Nor will it have a significant or
unique effect on small governments.
Regulatory Flexibility Act (5 U.S.C. Ch. 6)
The Regulatory Flexibility Act (RFA) requires Federal agencies to
assess the impact of a proposed rule on small entities and to consider
less burdensome alternatives for rules that are expected to have a
significant economic impact on a substantial number of small entities.
5 U.S.C. 603. However, an agency is not required to prepare such an
analysis for a proposed rule if the Agency head certifies that the rule
will not, if promulgated, have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 605(b). For the reasons
discussed below, the CSB has certified to the SBA's Chief Counsel for
Advocacy of the Small Business Administration (``SBA'') that the
proposed rule, if promulgated, will not have a significant economic
impact on a substantial number of small businesses, small governmental
jurisdictions, or small organizations.
Summary of Proposal
As authorized by 42 U.S.C. 7412(r)(6)(C)(iii), the CSB has proposed
a rule to require an owner or operator of a stationary source to submit
an accidental release report to the CSB. The proposed rule describes
when an owner or operator is required to file a report of an accidental
release, and the required content of such a report. The purpose of the
proposed rule is to ensure that the CSB receives rapid, accurate
reports of any accidental release that meets established statutory
criteria.
The proposed accidental release reports will require only
information that is already known or should be available to an owner/
operator soon after an accidental release. The required information is
also limited in scope to critical information required for the CSB to
make informed decisions about its
[[Page 67901]]
jurisdiction, interagency coordination, and deployment decision-making.
For example, paragraphs (a)-(e) require only minimal contact
information and a basic description of the accidental release.
Paragraph (g) requests the relevant CAS Registry Number associated with
the chemical(s) involved in the accidental release. Paragraphs (h),
(i), (j), and (l)(1)-(3) include an important qualifier, ``if known.''
This qualifier recognizes that some or all of this information may not
be known within four hours of an accidental release.
Economic Impact
Small Entity Impact
Although the CSB concluded that the proposed rule will not have a
significant economic impact on businesses, regardless of size, the CSB
nevertheless estimated how many small businesses would be impacted by
the proposed rule by using the following methodology. In order to
estimate the percentage of reports that would likely be filed by small
businesses each year, the CSB reviewed the 1,923 accidental releases to
determine how many releases could be matched to a NAICS code and how
many distinct NAICS codes were represented. Of the 1,923 incidents,
approximately 85 percent (1,625) had a NAICS code identifier. The 1,625
events were distributed among 441 distinct, six-digit NAICS codes.\1\
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\1\ The CSB determined that a total of 253 NAICS codes appeared
only one time over 10 years. Thus, 57% (253 out of 441) of the codes
involved only one incident.
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Because of the distribution of accidental releases among so many
different NAICS codes, the CSB focused its analysis on the business
types most likely to be impacted by the proposed rule: Firms with NAICS
codes that appeared most often in the dataset. The CSB sorted the 1,625
releases with a NAICS code into three segments: (1) NAICS codes which
appeared at least 10 times in the dataset; (2) NAICS codes which
appeared between 5-9 times, and (3) NAICS codes that appeared less than
5 times. The CSB concluded that a total of 19 NAICS codes appeared 10
or more times and represented 423 separate incidents, or 26% of the
1,923 events recorded in the database.
The 19 NAICS codes with at least 10 events over the pertinent time
period are listed in Table 2 below. The CSB used these 19 codes as a
sample to assess impact on small businesses. The CSB assumed that
releases fell evenly across all businesses within each NAICS code.
Based on the total number of reports for each code (column 2), the CSB
calculated the percentage of accidental releases occurring within each
of the 19 most frequent NAICS codes in relation to the total number of
1,923 incidents in the database. This information is summarized in
Table 2, column 3.
The CSB used the U.S. Small Business Administration Table of Small
Business Size Standards to determine the pertinent small business
standard for each of the 19 NAICS categories.\2\ Depending on the NAICS
code, a firm's status as a small business is determined by the number
of employees or by annual revenue.\3\ The pertinent measure for each
NAICS code, employment or revenue, is set out in Table 2 in the fourth
and fifth columns.
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\2\ U.S. Small Business Administration, Table of Small Business
Size Standards Matched to North American Industry Classification
System Codes (effective August 19, 2019), available at https://www.sba.gov/document/support--table-size-standards.
\3\ Id. The SBA does set out some alternative measures for
certain codes, but the CSB review used only standard measures.
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The CSB determined the total number of firms in each category, and
the total number of small firms in each category, by consulting the
most recent census tables summarizing data for U.S. businesses. See
Table 1, columns 6 and 7. The most recent data for businesses measured
by employment is from 2016.\4\ The most recent data for businesses
measured in terms of revenue is from 2012.\5\ The percentage of small
businesses within each NAICS code is listed in the last column of Table
2.
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\4\ Number of Firms, Number of Establishments, Employment, and
Annual Payroll by Enterprise Employment Size for the United States,
All Industries: 2016 (released 12/18/2018), available at https://www.census.gov/data/tables/2016/econ/susb/2016-susb-annual.html.
\5\ Number of Firms, Number of Establishments, Employment,
Annual Payroll, and Estimated Receipts by Enterprise Receipt Sizes
for the United States, All Industries: 2012 (released June, 22,
2015), available at https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
Table 1--Releases by NAICS Categories in Terms of Frequency of Releases 2009-2019
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Number Size Size
(percent) standards standards
NAICS industry of in millions in number
NAICS code name incidents of dollars of Total firms Small % Small
in sample of revenue employees
(N=1,923) (2012) (2016)
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324110.......... Petroleum 54 (2.8%) N/A 1,500 96 * 51 53
Refineries.
213112.......... Support 48 (2.5%) $42 N/A 8,877 8,595 98
Activities for
Oil and Gas
Operations.
211111.......... Crude Petroleum 44 (2.3%) N/A 1,250 5,658 * 5,558 98
and Natural Gas
Extraction.
424690.......... Other Chemical 28 (1.5%) N/A 150 5,912 5,410 92
and Allied
Products
Merchant
Wholesalers.
213111.......... Drilling oil and 27 (1.4%) N/A 1,000 1,795 * 1,754 98
gas.
325199.......... All Other Basic 24 (1.25%) N/A 1,250 584 * 485 83
Organic
Chemical
Manufacturing.
325998.......... All Other 24 (1.25%) N/A 500 1,005 924 92
Miscellaneous
Chemical
Product and
Preparation
Manufacturing.
325211.......... Plastics 20 (1.04%) N/A 1,250 855 * 736 86
Material and
Resin
Manufacturing.
423930.......... Recyclable 20 (1.04%) N/A 100 6,776 6,569 97
Material
Merchant
Wholesalers.
331110.......... Iron and Steel 22 (1.14%) N/A 1,500 442 * 372 84
Mills.
221310.......... Water Supply and 18 (.94%) 30 N/A 3,293 3,243 98
Irrigation
Systems.
424720.......... Petroleum and 17 (.88%) N/A 200 1,690 1,490 88
Petroleum
Products
Merchant
Wholesalers.
238910.......... Site Preparation 15 (.78%) 17 N/A 33,806 33,324 98
Contractors.
311615.......... Poultry 13 (.68%) N/A 1,250 317 * 258 81
Processing.
325180.......... All Other Basic 16 (.8%) N/A 1,000 365 279 76
Inorganic.
221320.......... Sewage Treatment 12 (.62%) 22 N/A 398 370 93
Facilities.
237120.......... Oil and Gas 12 (.62%) 40 N/A 1,779 1,592 89
Pipeline and
Related
Structures
Construction.
811111.......... General 11 (.57%) 8 N/A 76,336 75,639 99
Automotive
Repair.
713940.......... Fitness and 10 (.52%) 8 N/A 24,775 24,348 98
Recreational
Sports Centers.
Total 435 (23%)
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Note 1: An asterisk appears next to numbers in the table that are estimates based on a lack of sufficiently
specific census data. For example, the pertinent employment size standard for iron and steel mills set by the
SBA is 1,500 employees. However, census data does not provide specific information on the number of firms with
more than 1,500 employees. Instead, the highest category is 500 and more employees. Thus, for purposes of
analysis, the counted firms with less than 500 employees as small firms.
[[Page 67902]]
* * * * *
The CSB then multiplied the percentage of small business within
each category by the total number of reported releases in that category
over the 10-year period. Table 2, column 7. This number was then
divided by 10 to obtain the number of reports anticipated each year on
average from small businesses within each NAICS code.\6\ Table 2,
column 8. Because the number of small business reports expected
annually is low, (covering a range from .91 to 4.7) for the sectors
with the most identifiable releases, the CSB reasons that the impact in
sectors with only a few releases over 10 years would be
inconsequential.
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\6\ The database covered approximately 10.5 years, but the CSB
used 10 in its calculation for simplicity.
Table 2--Expected Annual Reports Burden by Sector
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Expected--
Total Expected reports from Expected
NAICS code NAICS industry name businesses Small % Small reports small annual
\7\ 2020-2030 businesses-- reports--small
2020-2030 business
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213112............................ Support Activities for Oil and Gas 8,727 8,596 .98 48 47 4.7
Operations.
211111............................ Crude Petroleum and Natural Gas 5,658 5,558 .98 44 43 4.32
Extraction.
324110............................ Petroleum Refineries.............. 96 51 .53 54 28.29 2.87
213111............................ Drilling Oil and Gas Operations... 1,795 1,754 .98 27 27 2.64
325998............................ Miscellaneous Chemical Product & 1,005 924 .92 24 22 2.2
Preparation Manufacturing.
423930............................ Recyclable Material Merchant 6,776 6,569 .97 20 19.4 1.94
Wholesalers.
325199............................ All Other Basic Organic Chemical 584 485 .83 24 20 1.99
Manufacturing.
331110............................ Iron and Steel Mills.............. 442 372 .84 22 18.48 1.85
325211............................ Plastics Material and Resin 855 736 .86 20 17.2 1.7
Manufacturing.
221310............................ Water Supply and Irrigation 3,293 3,243 .98 18 17.6 1.76
Systems.
424690............................ Other Chemical and Allied Products 5,912 5,410 .92 17 15.64 1.56
Merchant Wholesalers.
424720............................ Petro. and Petro. Products 1,690 1,487 .88 17 15 1.5
Merchant Wholesalers (except Bulk
Stations and Terminals).
238910............................ Site Preparation Contractors...... 34,153 32,997 .98 15 14.7 1.47
325180............................ All Other Basic Inorganic Chemical 365 279 .76 16 12.16 1.22
Manufacturing.
221320............................ Sewage Treatment Facilities....... 398 370 .93 12 11.2 1.12
811111............................ General Automotive Repair......... 76,336 75,639 .99 11 10.89 1.08
237120............................ Oil and Gas Pipeline and Related 1,779 1,592 .89 12 11 1.1
Structures Construction.
311615............................ Poultry Processing................ 317 258 .81 13 10.5 1.0
713940............................ Fitness and Recreational Sports 24,775 24,348 .98 10 10 .98
Centers.
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Estimated Reports per Year
The CSB identified 1,923 chemical accidents in its database that
occurred between January 1, 2009, and July 15, 2019. Each of these
incidents involved either a fatality or hospitalization. A copy of the
CSB's database information regarding the 1,923 accidental releases is
included in the docket for reference.\8\ The total number of annual
incidents ranged from a low of 113 in 2017 to a high of 291 in 2012.
Over 10.5 years, the average annual number of accidents was
approximately 183. The median number of accidents per year was 169.
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\7\ In order to calculate the number of small businesses, the
CSB had to use two different census tables. If the size standard was
based on revenue, the CSB relied on a 2012 table. If the size
standard was based on employment, the CSB used the 2016 table.
\8\ Because of the CSB's limited resources and lack of available
information, there are certain limitations to the information
contained in the CSB database. The database was not designed to
comprehensively collect statistically valid data concerning all
accidental releases. Much of the information in the database comes
from the first day of incident media reports. The CSB could only
follow up on a limited number of events per year to verify
information contained in the media reports.
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Because the database tracked hospitalizations (as opposed to
serious injuries as defined in the proposed rule), it is possible that
certain incidents within the CSB's investigatory jurisdiction are not
included in the database. In addition, it is possible that the CSB's
data does not include a small number of accidental releases that
resulted in a fatality. A release resulting in a fatality might have
been missed if it was not reported to NRC pursuant to other law or not
reported in the media.\9\ For these reasons, the CSB recognizes that
the annual average of 183 incidents may undercount a certain number of
accidental releases which meet the CSB's statutory criteria. On the
other hand, the past annual average does not take into account that a
certain number of full reports will not be required under the proposed
rule if a party has already reported the release to the NRC under
CERCLA. In light of all factors, the CSB increased its annual estimate
of reports from the historic average of 183 to 200.
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\9\ During the relevant time period, the CSB relied on NRC
reports and media surveillance search engines to identify releases
of interest.
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Burden Estimate-Time
The CSB considered two areas of burden: Familiarization costs and
reporting costs. The CSB estimated that it would take approximately 45
minutes for each firm to learn about the rule and when to report. The
CSB considers this a one-time cost, which will be borne by all entities
which might experience an accidental release, whether or not such a
release occurs. The CSB also estimated that it would take each firm
approximately 15 minutes to submit a report to the CSB following an
accidental release.
The CSB reviewed forms the NRC uses to guide its operators in
taking release information with questions similar to those included in
the CSB's proposed form. The main difference is that the proposed CSB
form had fewer data queries. The CSB asked NRC how long it typically
took its operators to collect information from a caller reporting an
accidental release. NRC does not break that information down based on
the type of incident involved but had other relevant, informal
information to share. NRC informed the CSB that it receives
approximately 30,000 telephone reports each year, and the average time
required for each operator to complete the call was approximately 8
minutes. The CSB conducted two simulated accidental release phone calls
in which the caller was asked for the same information as is required
under the proposed rule. These simulated calls also took approximately
8 minutes. Thus, the available information indicated that a
[[Page 67903]]
phone submission would take approximately 8 minutes. In its judgment,
the CSB estimated that it would take 2-3 additional minutes to complete
a screen-fillable .pdf form and email it to the CSB. To allow for some
margin of error in its analysis, the CSB estimates that it will take
approximately 15 minutes to submit a report, either by telephone or by
emailing a form.
Burden Estimate-Cost
The CSB then estimated an hourly labor cost to translate the time
requirement into a cost figure. In order to determine an appropriate
hourly rate, the CSB identified six relevant occupation codes, the
annual mean wage, and the mean hourly wage for each, based on the
Bureau of Labor Statistics' May 2018 National Occupational Employment
and Wage Estimates United States.\10\ The CSB next combined the average
hourly rate for each of the six classifications and divided that total
by six. This calculation produced an average hourly rate of $37.20.
This information is summarized in Table 3 below.
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\10\ https://www.bls.gov/oes/current/oes_nat.htm
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The CSB then multiplied the average hourly wage ($37.20) by the
total time requirement for the first year of one (1) hour (45 minutes
to learn about the rule and 15 minutes to submit a report). This
calculation resulted in an estimated per-business compliance cost
during the first year of $37.20. However, not all businesses will need
to file a report during the first year or each year thereafter.
Further, some businesses who need to file a report each year will not
have to submit a full report to the CSB if the firm has already
reported the event to the NRC under CERCLA.
Based on the minimal per business cost, the CSB has concluded that
the proposed rule will not have a significant economic impact on any
business, regardless of size.
Table 3--Occupational Classifications and Wages
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Mean annual
Occupational code Occupation title wage Mean hourly
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13-1041............................... Compliance Officer...................... $72,520 $34.86
17-2081............................... Environmental Engineers................. 92,640 44.54
17-2110............................... Industrial Engineers \11\............... 91,800 44.14
17-1111............................... Health and Safety Engineers \12\........ 93,630 45.01
17-3025............................... Environmental Engineering Technicians... 54,800 26.34
17-3026............................... Industrial Engineering Technicians...... 58,860 28.30
Composite Average Hourly................ .............. 37.20
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Given the minimal burden of reporting imposed under the proposed
rule, and the low number of reports expected from small businesses on
an annual basis, the CSB concluded that the proposed rule will not have
a significant economic impact on a substantial number of small
entities. The CSB seeks comments on this certification, under the RFA.
The CSB also requests comments on the threshold economic analysis,
presented above, and its underlying assumptions.
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\11\ Includes health and safety engineers.
\12\ Except Mining Safety Engineers and Inspectors.
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* * * * *
Paperwork Reduction Act (44 U.S.C. Ch. 35)
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA)
provides that an agency generally cannot conduct or sponsor a
collection of information, and no person is required to respond to, nor
be subject to a penalty for, failure to comply with a collection of
information unless that collection has obtained Office of Management
and Budget (OMB) approval and displays a currently valid OMB Control
Number.
As of the date of the publication of this proposed rule, the CSB
has made a PRA submission to OMB in accordance with 5 CFR 1320.5(a)(3)
and immediately below has published the following notice required under
5 CFR 1320.5(a)(1)(iv):
Type of Information Collection: New Collection.
Title of the Collection: Accidental release report.
Summary of the Collection: The proposed collection requires an
owner/operator of a stationary source to report information concerning
an accidental release. Specific detail is provided in the proposed
information collection request.
Need for the information and proposed use of the information: The
CSB is required by law to issue an accidental release reporting rule.
The CSB intends to use the information to learn of any accidental
release within its jurisdiction and to plan how to respond to that
particular accidental release.
A description of the likely respondents: The vast majority of
respondents will be private sector businesses involved in the
production, storage or handling of regulated substances or extremely
hazardous substances.
Estimated number of likely respondents per year: 200.
Proposed frequency of response to the collection of information:
Most respondents will only submit a response if an accidental release
within the scope of the rule occurs during a given year. For the vast
majority of potential respondents, the frequency of responses will
likely be ``none'' in a given year.
An estimate of the total annual reporting and recordkeeping burden:
Reporting: The CSB estimates that approximately 200 reports will be
submitted each year, and that each report will take approximately 15
minutes for each respondent to complete and submit to the CSB. Thus,
the CSB estimates the total annual labor burden each year for reporting
parties will be approximately 50 hours.\13\
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\13\ This estimate does not include first year familiarization
costs for potentially impacted firms to learn about the rule and its
requirements. However, the first year familiarization cost
calculation is addressed in the regulatory flexibility section of
the preamble.
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The CSB then estimated an hourly labor cost to translate the time
requirement into an annual cost figure. In order to determine an
appropriate hourly rate, the CSB identified six relevant occupational
classifications, and the annual salary for each position, based on the
Bureau of Labor Statistics' May 2018 National Occupational Employment
and Wage Estimates. A full discussion of this calculation is included
in the discussion above concerning the Regulatory Flexibility Act.
Based on its analysis, the CSB estimated an hourly rate of $37.20 was
appropriate for purposes of estimated labor cost. The CSB then
multiplied the average hourly wage rate of $37.20 by the total annual
time estimate of 50
[[Page 67904]]
hours to determine its total annual cost estimate of $1,860.00.
Recordkeeping: There is no recordkeeping requirement.
Notice that comments may be submitted to OMB: The collection of
information proposed in this rule has been submitted to OMB for review
under section 3507(d) of the Act. See 5 CFR 1320.8(d)(3). You may
submit comments to OMB's Office of Information and Regulatory Affairs
via email to [email protected], Attention: Desk Officer for
the CSB. Because OMB is required to make a decision concerning the
proposed information collection request between 30 and 60 days
following receipt, OMB must receive comments no later than January 13,
2020.
Any interested person may also submit comments to the CSB regarding
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden directly. Whether submitted to
OMB or the CSB, such comments should:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Address the potential to enhance the quality, utility, and
clarity of the information to be collected; and
Discuss options to minimize the burden of the collection
of information on those who are to respond, including through the use
of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses.
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
Ch. 6)
The proposed rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996 (as
amended), 5 U.S.C. 804. This rule will not result in an annual effect
on the economy of $100,000,000 or more; a major increase in costs or
prices; or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets.
National Environmental Policy Act of 1969 (5 U.S.C. 804)
The proposed rule will not have significant effect on the human
environment. Accordingly, this rule is categorically excluded from
environmental analysis under 43 CFR 46.210(i).
E-Government Act of 2002 (44 U.S.C. 3504)
Section 206 of the E-Government Act requires agencies, to the
extent practicable, to ensure that all information about that agency
required to be published in the Federal Register is also published on a
publicly accessible website. All information about the CSB required to
be published in the Federal Register may be accessed at http://www.csb.gov. This Act also requires agencies to accept public comments
``by electronic means.''
Finally, the E-Government Act requires, to the extent practicable,
that agencies ensure that a publicly accessible Federal Government
website contains electronic dockets for rulemakings under the
Administrative Procedure Act of 1946 (5 U.S.C. 551, et seq.). Under
this Act, an electronic docket consists of all submissions under
section 553(c) of title 5, United States Code; and all other materials
that by agency rule or practice are included in the rulemaking docket
under section 553(c) of title 5, United States Code, whether or not
submitted electronically. Regulations.gov will contain an electronic
docket for this rulemaking.
Plain Writing Act of 2010 (5 U.S.C. 301)
Under this Act, the term ``plain writing'' means writing that is
clear, concise, well-organized, and follows other best practices
appropriate to the subject or field and intended audience. To ensure
that this rulemaking has been written in plain and clear language so
that it can be used and understood by the public, the CSB has modeled
the language of this proposed rule on the Federal Plain Language
Guidelines.
National Technology Transfer and Advancement Act of 1995 Section 12(d)
(15 U.S.C. 272 Note)
The NTTAA requires agencies to ``use technical standards that are
developed or adopted by voluntary consensus standards bodies'' to carry
out policy objectives determined by the agencies, unless they are
``inconsistent with applicable law or otherwise impractical.'' The CSB
has determined that there are no voluntary consensus standards that are
appropriate for use in the development of this rule.
Congressional Review Act
A final rule will be subject to the Congressional Review Act (CRA).
5 U.S.C. 801(a)(1)(A). However, a final rule resulting from this
rulemaking will not be a major rule as contemplated under the CRA. See
5 U.S.C. 804(1).
Discussion of the Proposed Rule
The CSB proposes to add a new part to title 40 of the Code of
Federal Regulations, which will appear as a new part 1604. The proposed
part will consist of six sections. Proposed Sec. 1604.1 states the
purpose of the rule. Proposed Sec. 1604.2 sets forth key definitions.
Section 1604.3 sets forth who must file a report and when. Section
1604.4 describes the information required in each report. Section
1604.5 implements the enforcement provisions authorized by 42 U.S.C.
7412(r)(6)(O). Section 1604.6 confirms that the procedure for seeking
records obtained pursuant to the rule is governed by the Freedom of
Information Act (FOIA), 5 U.S.C. 552, the CSB's procedural regulations
for disclosure of records under the FOIA, 40 CFR part 1601, and other
pertinent Federal disclosure laws.
Sec. 1604.1 Purpose
The purpose of the rule is to require an owner/operator to notify
the CSB promptly of any accidental release within the CSB's
investigatory jurisdiction. When the enabling legislation was adopted,
there was no other reliable method for the government to learn quickly
of an accidental release other than requiring that an owner/operator
inform the government. A reporting rule should lead to the provision of
information useful to CSB in assessing its jurisdiction and making
deployment decisions.
Over the years, interested parties have suggested other potential
benefits of a reporting rule. For example, GAO opined that the value of
a reporting rule is broader than ensuring that the CSB receives mere
notification of incidents, stating that a rule would ``better inform
the agency of important details about accidents that it may not receive
from current sources.'' (GAO-08-864R, at 11.) GAO also suggested that
the information obtained through a reporting rule could improve the
CSB's ability to ``target its resources, identify trends and patterns
in chemical incidents, and prevent future similar accidents.''(GAO-08-
864R, at 7).
The CSB appreciates the points made in the GAO report. However, the
CSB is mindful that its enabling legislation
[[Page 67905]]
makes clear that in mandating this reporting rule, Congress did not
intend that such a rule would supplant or conflict with existing public
information and safety laws, such as The Emergency Planning and
Community Right to Know Act (EPCRA), which is focused on emergency
response, the protection of public health and safety, and the public
release of information to mitigate risks to the public.\14\
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\14\ See section 303 of EPCRA.
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The CSB, thus, has focused the rule on requiring an owner/operator
to promptly report an accidental release to the CSB. The CSB's ability
to propose a rule designed to achieve more than a meaningful
notification is limited by the language and purpose of its enabling
statute.
Sec. 1604.2 Definitions.
Section 1604.2 establishes definitions for the proposed rule. A few
comments in response to the ANPRM suggested that CSB use definitions
established in other rules. As explained below, the CSB could not use
certain existing definitions in other rules. For example, the CSB is
required to use certain definitions that are established at 42 U.S.C.
7412(r)(2)(A)-(C), which provides definitions for the terms
``accidental release,'' ``stationary source,'' and ``regulated
substance.'' Although not a mandatory definition, the CSB determined
that one definition in section 112(r) (``owner or operator'') was
appropriate and relied on that existing definition. The CSB also set
forth its own proposed definitions for certain terms important to
implementation of the rule. The discussion below addresses most of the
proposed definitions:
Accidental release means an unanticipated emission of a regulated
substance or other extremely hazardous substance into the ambient air
from a stationary source.
This proposed definition is adopted verbatim from 42 U.S.C.
7412(r)(2)(A). The CSB uses the statutory term ``accidental release''
throughout the rule to refer to an event meeting the specific statutory
criteria under 42 U.S.C. 7412(r)(2)(A). To the extent there are
references, in this or other related documents, to a ``chemical
accident'' or ``incident,'' the context and specific facts will
determine whether the event meets the statutory definition of an
``accidental release,'' or is instead employed generically to describe
an event that may or may not satisfy the statutory definition of an
accidental release.
Ambient air means any portion of the atmosphere inside, adjacent
to, or outside a stationary source.
Although mentioned many times throughout the Clean Air Act, there
is no statutory definition of the term ``ambient air.'' Accordingly,
the CSB proposes a plain meaning definition. The plain meaning of the
phrase ``ambient air'' is defined by two words--ambient, meaning
``existing or present on all sides'' and ``air,'' meaning ``the mixture
of invisible odorless tasteless gases (as nitrogen and oxygen) that
surrounds the earth'' (see, e.g., https://www.merriam-webster.com/dictionary/ambient; https://www.merriam-webster.com/dictionary/air).
The CSB is aware that EPA defined the term ``ambient air'' as part
of its rule implementing the National Primary and Secondary Ambient Air
Quality Standards. That definition reads as follows: ``Ambient air
means that portion of the atmosphere, external to buildings, to which
the general public has access.'' 40 CFR 50.1(e) While this definition
may work well in terms of implementation of the National Primary and
Secondary Ambient Air Quality Standards, its use in the CSB's proposed
rule would undercut a primary purpose of section 112 of the Clean Air
Act Amendments of 1990--to protect workers inside structures at a
stationary source.
Extremely hazardous substance means 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 EPA Administrator under 42 U.S.C. 7412(r)(5).
The term ``extremely hazardous substance'' is not defined in the
CSB's enabling legislation. However, the relevant legislative history
provides: ``The release of any substance which causes death or serious
injury because of its acute toxic effect or as the result of explosion
or fire or which causes substantial property damage by blast, fire,
corrosion or other reaction would create a presumption that such
substance is extremely hazardous.'' Sen. R. 101-228 at __ (1989),
reprinted in 1990 U.S.C.C.A.N. 3385, 3596. Although it is an important
element, the specific property of a substance, such as flammability,
toxicity, corrosiveness, etc., does not always determine whether a
substance is extremely hazardous. For example, a substance on its own
may not be considered hazardous. When combined with other substances,
however, the consequences may be lethal.
The CSB has therefore proposed a definition of ``extremely
hazardous substances,'' which focuses on the consequences of a
substance when it is accidentally released. Thus, an ``extremely
hazardous substance'' includes any substance that alone, or in
combination with other substances or factors, causes death, serious
injury, or substantial property damages.
Other 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.
Again, the pertinent legislative history supports an expansive
definition:
Extremely hazardous substances would also include other agents
which may or may not be listed or otherwise identified by any
Government agency currently which may as the result short-term
exposures associated with releases to the air cause death, injury or
property damage due to their toxicity, reactivity, flammability,
volatility or corrosivity.
S. Rep. 101-228 at 212 (1989), reprinted in 1990 U.S.C.C.A.N. 3385,
3596.
For example, the CSB definition is not limited to substances listed
as a ``regulated substance'' defined as such under 42 U.S.C.
7412(r)(3).
The accidents which the Board is to investigate are those which
result from the production, processing, handling or storage of a
chemical substance (not limited to the extremely hazardous
substances listed under subsection (c)) which result in a death,
serious injury, or substantial property damage.
S. Rep. 101-228 at 231 (1989), reprinted in 1990 U.S.C.C.A.N. 3385,
3615.
Thus, [extremely hazardous substances would include, but are not
limited to, those substances which are specifically listed by the
Administrator under subsection (c).'' S. Rep.101-228 at 212 (1989),
reprinted in 1990 U.S.C.C.A.N. 3385, 3596.
Nor should the CSB definition be limited by threshold quantity
limits set by other laws. A ``regulated substance'' includes a
``threshold quantity'' set by the Administrator under 42 U.S.C.
7412(r)(5). The CSB definition of extremely hazardous substance does
not incorporate the concept of a threshold quantity. Limiting the CSB
definition by reference to threshold limits set by other laws would
potentially lead to results inconsistent with the CSB's statutory
purpose. For example, the accidental release of a ``regulated
substance'' that does not meet a threshold quantity can still cause
serious injuries and death. There is nothing in the statutory scheme
[[Page 67906]]
to suggest that a death or serious injury caused by less than a
threshold quantity of a ``regulated substance'' or other hazardous
substance falls outside the CSB's investigatory jurisdiction.
To emphasize its broad definition and the inapplicability of a
generic threshold limit, the CSB definition of ``extremely hazardous
substance'' includes the phrase ``including but not limited to any
`regulated substance' at or below any threshold quantity set by the EPA
Administrator under 42 U.S.C. 7412(r)(5).''
General public means any person except for workers, employees or
contractors working for (or on behalf of) the owner or operator of a
stationary source from which an accidental release has occurred and any
person acting in the capacity of an emergency responder to an
accidental release from a stationary source.
Under its enabling legislation, the CSB is directed to treat
certain investigations as mandatory. See generally 42 U.S.C. 7412(r)(E)
(``In no event shall the Board forego an investigation where an
accidental release causes a fatality or serious injury among the
general public, or had the potential to cause substantial property
damage or a number of deaths or injuries among the general public.'').
The proposed definition reflects the specific statutory emphasis that
the CSB investigate any accidental release that impacts or threatens
people not involved directly in the operations of a stationary source.
The CSB is aware that EPA has longstanding policy interpretations of
``general public'' for purposes of implementing other sections of the
Clean Air Act. However, these policy interpretations are neither
binding nor pertinent to the CSB's implementation of an accidental
release-reporting rule under its statutory authority.
Owner or operator means any person who owns, leases, operates,
controls, or supervises a stationary source.
This proposed regulatory definition is adopted verbatim from 42
U.S.C. 7412(a)(9). As the enabling legislation recognizes, a stationary
source may be under the ``common control'' of different entities. See
42 U.S.C. 7412(r)(2)(C). Multiple owners, leaseholders, or operators
can exist alongside each other in complex business relationships such
that a stationary source may be considered under the common control of
two or more entities. Therefore, this definition applies to any person
or entity who owns, leases, operates, controls, or supervises a
stationary source, and can include parties with a joint interest,
partnership interest, partial ownership interest, co-ownership
interest, or any otherwise co-responsible parties who, in some manner,
share in the ownership, leasing, operation, control or supervision of a
stationary source.
These parties are in the best position to coordinate among
themselves to determine which entity should file an accidental release
report under this rule for an accidental release. For the purpose of
efficiency, multiple owner/operators may agree in advance or at the
time of release to a single, consolidated report on behalf of one or
more parties who are responsible for reporting an accidental release
from a stationary source. This proposed definition allows for the
owner(s)/operator(s) to decide for themselves how best to meet the
requirements of the rule, as long as an accidental release report is
submitted by one of the parties following an accidental release.
Property damage means damage to, or the destruction of, tangible
public or private property, including loss of use of that property.
This definition is well established for purposes of commercial
liability insurance policies, and therefore most owner/operators should
be familiar with its meaning and have no difficulty in determining
whether there has been any property damage. In addition, the proposed
definition confirms that pertinent property damage is not limited to
the stationary source, but also includes damage to private property
(e.g., homes) and public property outside the stationary source.
Regulated substance means any substance listed by the EPA
Administrator pursuant to the authority of 42 U.S.C. 7412(r)(3).
This definition is based on the definition at 42 U.S.C.
7412(r)(2)(B). The statute simply refers to ``substances listed under
paragraph (3).'' For clarity, the definition here refers to the full
citation at 42 U.S.C. 7412(r)(3) in order to encompass the ``List of
Substances.''
Serious injury means any injury if it results in any of the
following: Death; one or more days away from work; restricted work, or
transfer to another job; medical treatment beyond first aid; loss of
consciousness; any injury or illness diagnosed by a physician or other
licensed health care professional, even if it does not result in death,
days away from work, restricted work or job transfer.
As suggested by comments in response to its ANPRM, this definition
is based on OSHA's regulations pertaining to Recording and Reporting
Occupational Injuries and Illness, found at 29 CFR 1904.7. Although
OSHA's regulatory requirement focuses on ``significant'' injuries, the
CSB finds the word ``significant'' to be generally synonymous with the
word ``serious'' in this context (compare https://www.merriam-webster.com/dictionary/significant?utm_campaign=sd&utm_medium=serp&utm_source=jsonld#synonyms
and https://www.merriam-webster.com/dictionary/serious). The CSB
further concluded that use of an existing OSHA definition would
contribute to greater understanding among the regulated community and
help to ensure faster and more effective compliance with the new
regulation.
Stationary source means any buildings, structures, equipment,
installations or substance emitting stationary activities (i) which
belong to the same industrial group, (ii) which are located on one or
more contiguous properties, (iii) which are under the control of the
same person (or persons under common control), and (iv) from which an
accidental release may occur.
This definition is taken verbatim from 42 U.S.C. 7412(r)(2)(C).
While this definition reiterates longstanding statutory language, the
CSB notes that the phrase ``same industrial group'' requires some
additional clarification. The CSB interprets this phrase as referring
to ``industry group'' under the Standard Industrial Classification
system (SIC), which was in common use when the Clean Air Act Amendments
of 1990 were signed into law. SIC employed a four-digit classification
system; the first three digits in the four-digit sequence indicated the
``industry group.''
In 1997, the SIC system was replaced by North American Industry
Classification System (NAICS). NAICS employs a six-digit classification
system. Under NAICS, the fourth digit in the six-digit sequence
indicates industrial group. www.census.gov/eos/www/naics/faqs/faqs.html#q5.
Substantial property damages means property damage, at or outside
the stationary source, estimated to be equal to or greater than
$1,000,000.
In developing its definition, the CSB began with the plain meaning
of the statute.\15\ The CSB determined that the word ``substantial''
must be accorded some significance. Merriam Webster defines substantial
as ``considerable in quantity: significantly great. . . .'' Clearly,
property damage in a minimal amount (i.e., $100) should not be
considered ``substantial.'' This
[[Page 67907]]
interpretation is consistent with the available legislative history:
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\15\ The CSB separately defined the words ``property damage.''
See discussion above.
The Board is authorized to investigate accidental releases which
cause substantial property damage. Substantial damage would include
fires, explosions, and other events which cause damages that are
very costly to repair or correct, and would not include incidental
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damage to equipment or controls.
H.R. Conf. Rep. No. 952, 101st Cong., 2d Sess. 340 (1990), reprinted in
1990 U.S.C.C.A.N. 3867, 3872.
At the same time, the CSB determined that a very high dollar
threshold, i.e., $10,000,000, would not be consistent with the
statutory intent because there are numbers far below that amount that
any reasonable person would consider substantial. The difficulty, of
course, is where to draw the line between substantial and non-
substantial damages. The CSB looked at different sources for
guidance.\16\
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\16\ CSB understands that FEMA has defined the phrase
``substantial damage'' as ``damage of any origin sustained by a
structure whereby the cost of restoring the structure to its before-
damage condition would equal or exceed 50 percent of the market
value of the structure before the damage occurred.'' 44 CFR 209.2.
However, the CSB determined that this definition was too narrow
(property damage limited to structure) and would be less easy to
apply than an estimate of monetary damage.
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In reviewing its own work, the CSB concluded that nearly all of its
published investigation reports involved a fatality or serious injury.
This is noteworthy only because the CSB has not relied heavily on this
factor in selecting accidental releases to investigate in-depth. With a
low-dollar, property-damage-only accidental release, the CSB might
receive a number of reports that would be unlikely candidates for
further CSB investigation.
In response to its ANPRM, the CSB received few comments regarding
this definition. The American Chemistry Council's comment suggested
that the CSB adopt the DOT regulatory limit of $50,000. CSB-ANPR0901-
000115. The CSB also considered API 754 (2016). API 754 suggests
recording ``fire or explosion damage greater than or equal to $100,000
of direct cost'' under its Tier 1 category. Under API 754 Table D.1-
Tier 1 Process Safety Event Severity Weighting, $100,000 in property
damage would score one point. $1,000,000 would score three points,
$10,000,000 would score 9 points, and $100,000,000 would score 27
points.
The CSB also considered EPA's ``Summary of Quantified Damages'' in
its proposed amendments to its RMP rule. 81 FR 13637 at 13642-43, March
14, 2016. In looking at EPA RMP-covered facilities over a 10-year
period, the EPA estimated an average of $1,354,578 in onsite property
damage for each accident. Id. However, this figure is only an average,
not a median, and is limited to only a subset of facilities within the
scope of the proposed rule.
After reviewing the relevant factors, the CSB has proposed
$1,000,000 as a threshold for purposes of defining ``substantial
property damages.'' The CSB believes this amount should likely capture
accidental releases of significance when there is no other basis for
jurisdiction (no deaths or serious injuries). At the same time, this
threshold should reduce the number of reports required when there is
very little likelihood of serious scrutiny or follow-up investigation
by the CSB because the accidental release did not cause any deaths or
serious injuries.
The CSB notes, however, that any proposed threshold, even a much
lower one, may exclude a small number of very significant accidental
releases. This might occur if an accidental release fortuitously did
not result in death, serious injury, or substantial property damages,
but nevertheless involved the release of a significant amount of an
extremely hazardous substance such as hydrofluoric acid. Despite the
potential significance of such an accidental release, the CSB is
concerned that its statutory language--``death, serious injury, or
substantial property damages''--does not authorize it to require
reports when all three consequences are absent.
The CSB welcomes comments with respect to the proposed definition
of ``substantial property damages.'' Based on additional comment and
information, the CSB may revise the dollar threshold in its definition
to a level below $1,000,000.
Sec. 1604.3 Reporting an Accidental Release
Section 1604.3 establishes what constitutes a reportable accidental
release, and a deadline of four hours for reporting such an accidental
release directly to the CSB. This section also provides for two
alternatives for reporting an accidental release in attempt to avoid
duplicative reporting.
Avoiding Duplication
In its ANPRM, the CSB asked for comments on the following
questions: ``Should an initial report be made to the CSB or the
National Response Center?'' The CSB received a number of comments that
suggested that reports be submitted to the National Response Center
(NRC) in order to avoid duplicative reporting. The CSB has long sought
to avoid duplicative reporting requirements by arguing that it had
alternative methods for collecting the same information even in the
absence of a rule. For this reason, the CSB understands the concerns
expressed about additional reporting requirements.
In developing this proposed rule, the CSB also considered whether
accidents reported to the NRC under other laws could satisfy the CSB's
reporting rule. CSB considered information provided in reports it
already receives from the NRC, and reviewed its own incident database
to determine how many reports in the database, on average, are based on
reports the CSB receives from the NRC.
The CSB has determined that there is no simple method to ensure
that reports filed with NRC under other laws would satisfy the
requirements of a CSB reporting rule. The NRC collects information
based on the type of event (i.e., storage tank accidents), not specific
laws. Accordingly, there is no certain way to determine whether
information reported to the NRC under a certain law will also satisfy
CSB requirements. Some laws may seem to overlap with CSB's requirements
but include certain exceptions, i.e., threshold quantities. Under such
laws, if the accidental release does not meet the threshold quantity,
no report will be made to the NRC.
However, in conferring with NRC, CSB was able to determine that
reports under 40 CFR 302.6 (although not labeled as such) could be
reliably identified via a modified search algorithm. Accordingly, if an
owner/operator knows that it has submitted a report to NRC under 40 CFR
302.6, the owner/operator is not required to file a separate report
with the CSB. Rather, the owner/operator is simply required to notify
the CSB of the pertinent NRC identification number. The CSB would then
use this number to ensure that its search algorithm is capturing all
pertinent accidental releases reported to the NRC.
This approach is consistent with the CSB's legislative history,
which provides in pertinent part, that the CSB's ``reporting
requirements may be coordinated with other reporting requirements
established by the Agency [EPA] (for instance, under section 103 of
CERCLA).'' S. Rep. No. 101-228 at 236 (1989), reprinted in 1990
U.S.C.C.A.N. 3385, 3620.
Moreover, the CSB's legislative history provides:
The regulations of the Board for accident reporting may provide
that any person directed to make a report contact the National
Response Center rather than the Board directly. This will assure
coordination of such reports with responsibilities under
[[Page 67908]]
the Comprehensive Environmental Response, Compensation and Liability
Act, the Clean Water Act and the Hazardous Materials Transportation
Act. If the National Response Center is to be the initial point of
contact under such rules, then the Board shall assure that officials
at the National Response Center promptly notify the Board or its
officers whenever an accidental release requiring an investigation
has occurred.
Id.
Reports to CSB
Other than reports submitted to the NRC under 40 CFR 302.6, the
proposed rule requires that a report be made to the CSB directly.
According to CSB estimates, the proposed rule will require
approximately 200 reports per year. However, the total number made to
CSB should be fewer because some reports made to NRC under 40 CFR 302.6
will satisfy the CSB's requirements. In any event, compliance by
telephone, or by filing a report directly with the CSB (through
completion of a form), should not be a complicated or time-consuming
matter.
Reporting Deadline
In its ANPRM, the CSB asked for comments on the following question:
``How soon after an accident should reporting occur?'' The CSB received
a range of comments. These comments suggested a reporting deadline of
between two and twenty-four hours. The proposed rule includes a four-
hour deadline.
In response to the 2009 ANPRM, the American Society of Safety
Professionals commented, ``a minimum of three hours is needed for a
site's emergency response priorities and any extenuating circumstances
to be handled.'' The CSB understands that the first several hours
following an accidental release require a focus on emergency response
actions. Accordingly, the CSB decided against an ``immediate report''
or one within an hour or two of an accidental release.
At the same time, the CSB needs to make deployment decisions as
quickly as possible so that investigators can arrive at the accident
site within the first 24 hours after the accidental release. CSB has
learned from experience that it is often crucial to begin an
investigation within this timeframe to examine physical evidence before
it is disturbed, and to interview witnesses while the facts and
circumstances are still fresh.
In order to achieve this goal, the CSB determined that the proposed
rule should require notification that would allow the CSB sufficient
time to receive a report, analyze preliminary information, make a
deployment determination, and deploy investigators to the site of the
accidental release within 24 hours. The proposed four-hour deadline
should be sufficient for the CSB to achieve its deployment goal while
not interfering with immediate emergency response activities.
Revisions to Report
In response to the 2009 ANPRM, the American Chemistry Council's
comment suggested that the CSB's reporting rule include a provision for
a reporting party to correct unintentionally incorrect information
within a reasonable period of time following an accidental release. The
CSB agrees with this comment, and the proposed rule includes a
provision that allows an owner/operator to file any revision or update
to an initial report submitted either to the CSB or to the NRC. The
proposed rule is not intended to create a trap for any owner/operator
submitting a report on short notice based on the best available
information.
Sec. 1604.4 Information Required in an Accidental Release Report
Section 1604.4 details the information that must be submitted by an
owner/operator in a report. The information required is consistent with
information that the CSB has collected for years from various public
sources, and has attempted to verify through public information
channels, or through phone calls or email exchanges with the
representatives of an owner/operator in the immediate aftermath of an
accidental release. This approach has not always been ideal for either
the CSB or an owner/operator because CSB must make multiple phone calls
or send multiple emails to an owner/operator over a period of hours and
days. In this section, the CSB has attempted to balance its need for
prompt information with the desirable goal of obtaining as much
pertinent information as possible.
As reflected in the purpose of the rule (1604.1), the CSB has
determined that the prompt reporting of basic information is its
highest priority. While additional, detailed information is desirable,
the CSB concluded that it would need to extend the reporting deadline
if it added additional information requirements beyond those set out in
the proposed rule. Some additional requirements would arguably require
additional hours, or even days, for compliance. At some point, the
primary purpose of the rule--prompt notification of an accidental
release--would be undermined by the quest for more information.
The CSB has also considered the need of an owner/operator to focus
on numerous matters in the immediate aftermath of accidental release.
Accordingly, the proposed accidental release reports will require only
information that is already known or should be available to an owner/
operator soon after an accidental release. The required information is
also limited in scope to critical information required for the CSB to
make informed decisions about its jurisdiction, interagency
coordination, and deployment decision-making. For example, paragraphs
(a)-(e) require only minimal contact information and a basic
description of the accidental release. Paragraph (g) requests the
relevant CAS Registry Number associated with the chemical(s) involved
in the accidental release.\17\ The CAS information will help the CSB in
making informed decisions about deploying investigators and initiating
an investigation. Paragraphs (h), (i), (j), and (l)(1)-(3) include an
important qualifier, ``if known.'' This qualifier recognizes that some
or all of this information may not be known within four hours of an
accidental release.
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\17\ A CAS Registry Number is assigned by an organization called
CAS (a division of the American Chemical Society). See https://www.cas.org/support/documentation/chemical-substances/faqs#2. It is
a unique numberic identifier that is well known to the companies who
produce, handle, or ship chemicals and will require minimal effort
to include in a report.
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Paragraph (k) asks the owner/operator to provide an estimate of
``property damage at or outside the stationary source.'' The owner is
required to make an estimate only, not report an exact figure, or to
state whether or not the amount of property damage meets or exceeds the
definition for ``substantial property damages.'' There will be certain
instances when an owner or operator may need to assess whether a report
is required at all by reference to the definition of ``substantial
property damages.'' However, for purposes of including a number in the
report, the owner/operator may simply include the best available
estimate, regardless of whether the amount falls above or below the
threshold for reporting. The CSB also anticipates that the number of
reports required to be submitted solely because of the ``substantial
property damages'' criterion should be rather limited.
Sec. 1604.5 Failure to Report an Accidental Release
Paragraphs (a) and (b) of Sec. 1604.5 implement the enforcement
provisions authorized by 42 U.S.C. 7412(r)(6)(O).
[[Page 67909]]
For one year following the effective date of the rule, the CSB will
refrain from referring violations for enforcement, unless there is a
knowing failure to report. This policy is required to allow adequate
time for compliance education.
The CSB is confident that most significant matters will come to its
attention through its ongoing surveillance of accident activity. For
one year following the effective date of the rule, the CSB will contact
any owner/operator who it believes should have filed a report. If a
report is filed immediately following notification, the CSB will not
refer the failure to report under Sec. 1604.5.
A significant number of accidental releases are concentrated within
certain industries. The CSB anticipates that firms within these sectors
will be the focus of initial compliance education outreach. The
remainder of accidental releases occur in a range of other sectors. The
CSB anticipates that additional time may be required to adequately
educate all sectors. If appropriate, the CSB will extend the grace
period for such sectors.
Similarly, accidents involving small facilities with few employees
require special consideration.
In some cases, the owner/operator may not be able to report an
accidental release within four hours, especially if ongoing response
activities require attention. The CSB has encountered such cases in the
past and has worked with owners and operators to factor in such
exceptional circumstances. The grace period described above will
resolve such issues in a reasonable fashion for at least one year
following the date of adoption. The CSB will consider a longer-term
approach to these unique situations and propose appropriate compliance
guidance and/or amendments to any final rule before the grace period
has expired.
The CSB intends to issue compliance guidance periodically, and
welcomes comments that address unusual circumstances. For example, the
CSB is interested in comments on what exceptions should be made for
owner/operators with small operations and few employees.
Sec. 1604.6 Public Availability of Accidental Release Records
This section is included to clarify that the procedure for seeking
records obtained pursuant to the rule is governed by the Freedom of
Information Act, 5 U.S.C. 552, (FOIA), the CSB's procedural regulations
for disclosure of records under the FOIA, 40 CFR part 1601, and any
other pertinent Federal disclosure laws.
Neither 42 U.S.C. 7612(r)(6)(C)(iii) nor 42 U.S.C.
7612(r)(6)(Q),\18\ alone or in combination, authorize the immediate
disclosure of accidental release record information apart from the
requirements of FOIA. Importantly, neither of those two provisions,
alone or in combination, authorize the immediate disclosure of
accidental release report information in order to support emergency
response and public safety operations. Such a reading would potentially
conflict with the implementation of other existing public information
and safety laws, such as EPCRA (see section 303), which are directly
focused on emergency response, the protection of public health and
safety, and the public release of information to mitigate risks to the
public.
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\18\ CSB does not interpret subsection Q as in any manner
amending the FOIA.
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List of Subjects in 40 CFR Part 1604
Hazardous substances, Reporting and recordkeeping requirements.
0
For the reasons set forth in the preamble, the Chemical Safety and
Hazard Investigation Board proposes to add 40 CFR part 1604 to read as
follows:
PART 1604--REPORTING OF ACCIDENTAL RELEASES
Sec.
1604.1 Purpose.
1604.2 Definitions.
1604.3 Reporting an accidental release.
1604.4 Information required in an accidental release report
submitted to the CSB.
1604.5 Failure to report an accidental release.
1604.6 Public availability of accidental release records.
Authority: 42 U.S.C. 7412(r)(6)(C)(iii); 42 U.S.C.
7412(r)(6)(N)
Sec. 1604.1 Purpose.
The enabling legislation of the Chemical Safety and Hazard
Investigation Board (CSB) provides that the CSB shall establish
requirements binding on persons for reporting accidental releases into
the ambient air subject to the Board's investigative jurisdiction. 42
U.S.C. 7412(r)(6)(C)(iii). This part establishes the rule required by
the enabling legislation. The purpose of this part is to require prompt
notification of any accidental release within the CSB's investigatory
jurisdiction.
Sec. 1604.2 Definitions.
Accidental release means an unanticipated emission of a regulated
substance or other extremely hazardous substance into the ambient air
from a stationary source.
Ambient air means any portion of the atmosphere inside or outside a
stationary source.
Extremely hazardous substance means any substance which 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 Environmental Protection Agency (EPA) Administrator
under 42 U.S.C. 7412(r)(5).
General public means any person except for:
(1) Workers, employees or contractors working for (or on behalf of)
the owner or operator of a stationary source from which an accidental
release has occurred; and
(2) Any person acting in the capacity of an emergency responder to
an accidental release from a stationary source.
Owner or operator means any person or entity who owns, leases,
operates, controls, or supervises a stationary source.
Property damage means damage to or the destruction of tangible
public or private property, including loss of use of that property.
Regulated substance means any substance listed pursuant to the
authority of 42 U.S.C. 7412(r)(3).
Serious injury means any injury if it results in any of the
following:
(1) Death; one or more days away from work; restricted work or
transfer to another job; medical treatment beyond first aid; loss of
consciousness; or
(2) Any injury or illness diagnosed by a physician or other
licensed health care professional, even if it does not result in death,
days away from work, restricted work or job transfer, medical treatment
beyond first aid, or loss of consciousness.
Stationary source means any buildings, structures, equipment,
installations, or substance-emitting stationary activities which belong
to the same industrial group, which are located on one or more
contiguous properties, which are under the control of the same person
(or persons under common control), and from which an accidental release
may occur.
Substantial property damages means estimated property damage at or
outside the stationary source equal to or greater than $1,000,000.
Sec. 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
[[Page 67910]]
this section, any accidental release resulting in a fatality, serious
injury or substantial property damages.
(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 immediately following submission of the 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 four hours of
the accidental release and must include the required information listed
in Sec. 1604.4. A report may be made by email to: [email protected], or
by telephone at 202-261-7600.
(d) Notwithstanding paragraphs (a) through (c) of this section, an
owner or operator of a stationary source, without penalty, may revise
and/or update information reported to the NRC or CSB by sending a
notification with revisions by email to: [email protected], or by
correspondence to: Chemical Safety Board (CSB), 1750 Pennsylvania Ave.
NW, Suite 910, Washington, DC 20006, within 30 days following the
submission of a report to the NRC or CSB. If applicable, the
notification must reference the original NRC identification number. No
update or revisions should be sent to the NRC.
Sec. 1604.4 Information required in an accidental release report
submitted to the CSB.
The report required under Sec. 1604.3(c) must include the
following information regarding an accidental release as applicable:
(a) The name of, and contact information for, the owner/operator;
(b) The name of, and contact information for, the person making the
report;
(c) The location information and facility identifier;
(d) The approximate time of the accidental release;
(e) A brief description of the accidental release;
(f) An indication whether one or more of the following has
occurred:
(1) Fire;
(2) Explosion;
(3) Death;
(4) Serious injury; or
(5) Property damage;
(g) The name of the material(s) involved in the accidental release,
the Chemical Abstract Service (CAS) number(s), or other appropriate
identifiers;
(h) If known, the amount of the release;
(i) If known, the number of fatalities;
(j) If known, the number of serious injuries;
(k) Estimated property damage at or outside the stationary source;
(l) Whether the accidental release has resulted in an evacuation
order impacting members of the general public and others, and, if
known:
(1) The number of people evacuated;
(2) Approximate radius of the evacuation zone; and
(3) The type of individuals subject to the evacuation order (i.e.,
employees, members of the general public, or both).
Sec. 1604.5 Failure to report an accidental release.
(a) It is unlawful for any person to fail to make reports required
under this part, and suspected violations of this part will be
forwarded to the Administrator of the EPA for appropriate enforcement
action.
(b) Violation of this part is subject to enforcement pursuant to
the authorities of 42 U.S.C. 7413 and 42 U.S.C. 7414, which may
include--
(1) Administrative penalties;
(2) Civil action; or
(3) Criminal action.
Sec. 1604.6 Public availability of accidental release records.
Accidental release records collected by the CSB under this rule may
be obtained by making a request in accordance with 40 CFR part 1601,
the CSB's procedures for the disclosure of records under the Freedom of
Information Act. The CSB will process, and if appropriate, disclose
such records, only in accordance with 40 CFR part 1601 and relevant
Federal information disclosure laws.
Dated: December 4, 2019.
Thomas A. Goonan,
General Counsel, Chemical Safety and Hazard Investigation Board.
[FR Doc. 2019-26495 Filed 12-11-19; 8:45 am]
BILLING CODE 6350-01-P
