February 15, 2020 – Safety and Compliance

Chemical Safety Board Issues Final Rule on Release Reporting.  Just two months after issuing a proposed rule, the Chemical Safety and Hazard Investigation Board has published a final rule for reporting of accidental releases of a regulated substance or other extremely hazardous substances into the ambient air from a stationary source. The rule includes releases of petroleum products, including biofuels. Stationary sources would exclude trucks or other motor vehicles.

The CSB estimates that 200 releases per year will be subject to its new reporting requirements.

The rule creates a new Part 1604 of title 40 CFR.  It requires reporting any accidental release from a stationary source into the ambient air of hazardous substance that causes death, serious injury resulting in inpatient hospitalization, or more than $1 million in property damage.  The reporting requirements are not limited to threshold quantities of regulated substances under other EPA or OSHA regulatory schemes, however.

Although the term “extremely hazardous substance” is not defined in the CSB’s enabling legislation, 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.” The CSB also noted, “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 final rule requires reporting of an accidental release within eight hours of the release (an increase from four hours in the proposal). If the owner or operator has submitted a report to the National Response Center pursuant to 40 CFR 302.6, however, the CSB reporting requirement may be satisfied by submitting the NRC identification number to the CSB within 30 minutes of submitting a report to the NRC. The CSB final rule requires reporting contact information and a basic description of the accidental release, including the relevant CAS Registry Number for the chemical(s) involved in the release, and an estimate of the property damage at or outside the stationary source.

The CSB began operations in 1998 and is charged with investigating the causes of chemical accidents. It is modeled on the National Transportation Safety Board, which investigates the cause of transportation accidents. Like the NTSB, the CSB has no enforcement authority and limited regulatory authority. The CSB’s release reporting rule was mandated by Congress in the 1990 Clean Air Act Amendments; when the agency failed to issue the rule as required, a federal court in February 2019 directed the CSB to publish a final rule within 12 months.

The new requirements will become effective 30 days after the rule is published in the Federal Register, which is expected to happen in the next few days.

OMB Seeks Input on Reforms of Regulatory Enforcement.  The Office of Management and Budget is seeking public input on additional reforms to ensure adequate due process in regulatory enforcement and adjudication.  85 Fed. Reg. 5483 (January 30, 2020).  This is the next step in the White House effort to promote regulatory reform.

The notice requests public input on procedural reforms to both formal and informal adjudications and pre-adjudication enforcement protection.  In particular, OMB asks a number of questions about measures necessary  to ensure a speedy and fair investigation; responses to investigations by multiple agencies a the same time; applying the concept of res judicata so that an issue decided in one proceeding is not relitigated at another time or by another agency; how to assess the burden of proof in an administrative proceeding; what rules of evidence should apply in an enforcement proceeding, and should the government be required to provide all evidence (including exculpatory evidence) to the other party in an enforcement proceeding.

In addition, OMB seeks input on how to maintain a level of independence between the adjudicator (often and administrative law judge) and the regulatory agency that is prosecuting the enforcement action; whether there is sufficient transparency regarding penalties and fines, and are they generally proportionate to the infractions for which they are assessed; do agencies coerce regulated parties into settlement of enforcement actions; and whether there are certain types of proceedings that warrant fewer procedural protections than others.



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