Stationary source operators must report accidental chemical releases

On August 30, 2022, the U.S. Chemical Safety and Hazard Investigation Board (“CSB” or “the Agency”) released a guidance document to help owners and operators of stationary sources and similar stakeholders Understand and comply with CSB’s accidental release and reporting rule. (the “Rule”), finalized by the Agency on February 21, 2020.

The rule reflects the Agency’s mandate to investigate serious accidents that result from the production, processing, handling or storage of chemical substances and to establish requirements for the reporting of such accidents. The rule indicates when an owner or operator of a stationary source is required to file an accidental release report and the required content of such a report. The August 2022 Guidance on Accidental Release Reporting (“Guide”) provides an overview of the rule and offers guiding principles and best practices for owners and operators to determine when an accidental release report must be filed, and what information must be included in the report to meet all established statutory criteria.

In accordance with the rule and guidance, owners and operators must report accidental releases of a controlled substance or other extremely hazardous substance into the ambient air from a stationary source that result in death, injury severe or substantial property damage. The release of the substance must be “closely associated with the production, processing, handling or storage of chemicals at a stationary source”. These requirements include a number of terms open to interpretation by the Agency. The Guide offers the following clarifications regarding what constitutes a reportable “accidental release”:

  • An “accidental release” is an “unplanned release”, which means that the release itself was unintentional. An unplanned release resulting from a planned event, such as a licensed flaring, is still an “accidental release” if the release of the substance itself was unplanned or unintentional.

  • The term “ambient air” is defined in the rule as “any part of the atmosphere within, adjacent to or outside a stationary source”. This should be distinguished from the EPA’s definition of ambient air as the “part of the atmosphere, outside of buildings, to which the general public has access”. The CBS declined to adopt this definition because it would defeat the Agency’s primary purpose and mandate: to protect workers inside structures from a stationary source.

  • The Rule defines a “stationary source” as “any building, structure, equipment, installation 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”. The guidelines specify that natural gas transmission facilities, including interstate and intrastate natural gas transmission pipelines, natural gas distribution systems, and natural gas storage facilities incidental to transmission, are stationary sources.

  • The term “controlled substance” includes substances that are regulated by the federal government. CSB refers to the list of substances covered by the EPA’s Risk Management Plan rule (see 42 USC § 7412) or the OSHA Process Safety Management Standard (see 29 CFR § 1910.119) as examples of controlled substances. Whether a regulated substance involved in an accidental release meets the threshold quantity requirement under other federal regulations is irrelevant.

  • The term “extremely hazardous substance” is defined as any substance capable of causing death, serious injury or substantial property damage. Substances such as water or air can be considered extremely hazardous substances if the substance alone, or in combination with other substances or factors, can cause death, serious injury or substantial property damage. A substance such as high temperature vapor could be considered an extremely hazardous substance if these requirements are met and if the release of high temperature vapor is closely associated with the production, processing, handling or storage of chemicals at high temperature. a stationary source.

  • The Guide specifies that “controlled substances” or “extremely hazardous substances” include substances in liquid, solid or gaseous state. According to the CSB, combustible dust could be considered an extremely hazardous solid substance.

  • Major property damage is generally considered damage over $1,000,000. This figure includes damage to equipment, engineering and repair work, loss of use and damage to natural resources.

On the issue of timing, the Guide clarifies that the requirement that owners or operators report an accidental release within eight hours has its limitations. Commentators have raised concerns with CSB that facility employees may not be present at a facility to identify the release during the eight-hour window; or the owner or operator can conclusively conclude that no death, serious injury or significant property damage occurred within the eight hour window, to receive subsequent information leading to a different conclusion more than eight hours after rejection. CBS clarified that in such circumstances, the Agency expects owners and operators to act in good faith and immediately report the accidental release upon discovery or receipt of information suggesting that it should be reported. . Owners and operators have a 30-day “safe harbour” period after the release during which they must report an accidental release to the Agency if they subsequently receive information indicating that it was reportable, or update a prior report with additional information not available during the initial eight-hour window.

The Guide provides a number of instructive assumptions that owners and operators can consider to better understand how these guiding principles should be applied in practice. Most importantly, the CSB guidelines convey an essential and overriding message: if in doubt, report it. There is no penalty for over-declaration, and CSB estimates that the initial declaration form will take less than ten minutes for owners and operators to complete. However, failure to report could result in legal action by the EPA. The declaration form can be accessed here.

© 2022 Bracewell LLPNational Law Review, Volume XII, Number 243