January 13, 2020
Chemical Safety and Hazard Investigation Board
1750 Pennsylvania Ave. NW, Suite 910
Washington, DC 20006
ATTN: Reporting Rule Comment
Via regulations.gov submission
RE: Accidental Release Reporting, Docket No. CSB-2019-0004, RIN 3301-AA00
To whom it may concern:
SOCMA appreciates the opportunity to submit comments on the Chemical Safety and Hazard Investigation Board’s proposed accidental release reporting rule.
SOCMA is the national trade association representing the specialty and fine chemical industry. Founded in 1921, SOCMA represents a diverse membership of chemical companies who manufacture unique and innovative chemistries used in a wide range of commercial, industrial, and consumer products. SOCMA maintains a strong record of member service through programs that maximize commercial opportunities, enhance regulatory and legal compliance, and promote industry stewardship.
SOCMA has a vital stake in this rulemaking. All of SOCMA’s members that manufacture or handle chemicals would be subject to the proposed CSB accidental release reporting rule. Many of them operate batch chemical facilities, which by nature are often small-scale with a limited number of employees. SOCMA’s members are particularly challenged to comply with new regulatory obligations, particularly those which can be considered duplicative and burdensome. This is especially true in the area of release reporting, where SOCMA members are already subject to immediate and follow-up reporting obligations to the National Response Center (NRC), their Local Emergency Planning Committees and State Emergency Response Commissions, the Occupational Health and Safety Administration (OSHA), and state air and water permitting agencies. At many SOCMA member companies, the same person is primarily responsible for ensuring that employees and the public are safe, handling oversight of containment of a release, making notifications, handling follow-up calls from all of the agencies, and getting a response contractor onsite. Thus, it is particularly important to SOCMA that the CSB make the thresholds and timing requirements of its reporting rule as integral and consistent as possible with those of other agencies.
SOCMA has historically shared the view that the CSB did not need to initiate a rulemaking on this topic, particularly given the extent of current obligations to report releases to the variety of entities noted above. SOCMA recognizes, though, that following the federal court decision in 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), CSB is obligated to issue such a rule. And while SOCMA credits CSB’s stated intention to avoid duplication and minimize the potential burden of a new reporting requirement on regulated entities, SOCMA believes the rule, as currently proposed, is still far too broad. Below, SOCMA offers its advice and recommendations to ensure this new reporting requirement is minimally burdensome while also ensuring its practical effectiveness in helping the CSB fulfill its legal obligation and its mission more generally.
I. CSB Should Modify the Definition of “Serious Injury” to Align with OSHA Reporting Regulations
CSB proposes that for purposes of meeting the reporting threshold, “serious injury” is to be defined as “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.” While CSB states that this definition promotes alignment with the Recording and Reporting Occupational Injuries and Illness regulations promulgated by OSHA, the definition actually represents significant overreach and inconsistency for the regulated community.
As an initial matter, CSB’s proposed definition does not in fact track OSHA’s. The OSHA definition refers to “significant injury or illness diagnosed by a physician or other licensed health care professional,” whereas CSB’s proposed definition omits the significance limitation.
More generally, as CSB knows, OSHA recordable incidents are common occurrences, though not typically as a result of an accidental release. For those accidental releases that do occur, a significant portion are minor, having no impact on the integrity of the facility or surrounding property, yet potentially leading to the provision of outpatient care such as first aid to injured employees. Such an incident often does not meet the threshold to trigger reporting to the National Response Center (NRC) under the CERCLA/SARA reporting requirements, yet could be reportable to the CSB under the broad proposed definition of “serious injury,” so long as if a physician or other health care professional diagnosed it. Such recordable incidents do not meet any fair interpretation of the statutory term “serious,” and are not representative of the scale of an event that would result in damage equal or greater than $1M or result in fatalities, which CSB is primarily interested in for the purposes of this rulemaking. Having to report on such OSHA recordable incidents would represent a significant burden to companies, lead to the submission of trivial reports, and not serve any practical value in assisting the CSB in investigating those accidental releases with significant impacts. The lack of any significance trigger also increases the difficulty of complying within four hours, as a facility’s owner/operator is less likely to be informed promptly of minor diagnoses (e.g., contact dermatitis).
To better align with Congress’s objectives for this rulemaking, CSB should not use the OSHA recordable criteria under 29 C.F.R. § 1904.7(a). It should instead revise the definition of “serious injury” to incorporate the OSHA reportability threshold under 29 C.F.R. § 1904.39. The latter regulation requires that employers promptly report to OSHA all work-related fatalities, hospitalizations of one or more employees, as well as all work-related amputations and losses of an eye. Adopting this OSHA threshold would ensure that the OSHA and CSB requirements are coextensive, so that from an illness or injury perspective, a facility would always report to both agencies, or to neither, whenever an accidental release occurred. Use of the OSHA reportable threshold would benefit both the regulated community and the CSB by not requiring the reporting of incidents that are by their very nature not so serious or significant as to require immediate reporting to OSHA.
II. CSB Should Lengthen the Time Window for Reporting
SOCMA has heard from numerous members that the 4-hour reporting window proposed by CSB is inadequate and counterproductive. In the aftermath of a release, facilities are (and should be) focused on managing response activities and ensuring employees and the public are safe. Immediate and prompt notifications on the part of the facility’s owner/operator are intended to trigger the deployment of fire, medical and other critical response resources by federal, state, and local government entities. While SOCMA acknowledges that CSB also plays an important role in the aftermath of the incident by conducting root cause investigations and issuing safety recommendations, its mission and responsibilities do not include emergency response. Such a narrow window proposed by CSB would in practice inhibit prompt notifications and coordination with those entities responsible for assisting in response and containment.
Under its illness and injury reporting rules, OSHA requires that work-related fatalities be reported within 8 hours, and all other work-related serious injury incidents reported within 24 hours. To alleviate the conflicts just discussed, and to further promote regulatory consistency, the CSB should align its reporting requirement with OSHA’s. SOCMA therefore recommends that CSB institute an 8-hour reporting window for fatalities and a 24-hour reporting window for all other reporting. This will ensure that companies are not unnecessarily burdened or penalized for being unable to promptly comply with the requirement as a result of their coordination with local responders, their ongoing emergency response activities, and their notifications to the multitude of existing regulatory authorities who must already be contacted. This reporting window compares well with the reporting of multiple injury events or fatalities under other mechanisms. SOCMA believes that the 8/24-hour reporting window would additionally not inhibit CSB’s ability to promptly coordinate with other agencies and make rapid deployment decisions, as CSB would still be informed of significant releases as a result of comprehensive and timely news media reporting.
III. Notifications to the National Response Center Fully Satisfy the Reporting Requirement
CSB proposes that if an owner/operator has submitted a report on the accidental release to the National Response Center (NRC) under 40 C.F.R. § 302.6, the owner/operator would not be required to file a new separate report with the CSB; it would only be required to notify the CSB of the NRC report using the pertinent identification number. However, the statute provides that “[r]eporting releases to the National Response Center, in lieu of the Board directly, shall satisfy [the CSB’s] regulations.” Thus, requiring the additional submission of the NRC identification number goes beyond CSB’s statutory authority. It is also duplicative, unnecessary, and burdensome to companies. The statute clearly articulates that filing reports with the NRC would fully exempt submitters from any additional obligation to report to the CSB. The very next sentence in the statute explains why any additional notification to the CSB by the submitter is unnecessary:
“The National Response Center shall promptly notify the Board of any releases which are within the Board’s jurisdiction.” The CSB should therefore work with the NRC to arrange for the collection of those reports that meet the thresholds described in this proposal. Doing so would adhere to the statutory exemption, minimize duplicative reporting, and eliminate the burden on facilities of having to complete multiple reports for the same incident.
IV. SOCMA Supports Collecting Only Information that is Already Known or Should be Available
CSB states that its intention is to collect only “information that is already known or should be available to an owner/operator soon after an accidental release.” With the limited 4-hour reporting window CSB proposes, information reported to CSB may further be subject to uncertainty depending on the circumstances of the incident. CSB therefore includes the significant qualifier “if known” on a number of information categories under § 1604.4(h), (i), (j), (l)(1)-(3), applicable to the amount of the release, the number of fatalities, the number of serious injuries, and, depending on whether the release has resulted in an evacuation order impacting members of the general public and others, the number of people evacuated, the approximate radius of the evacuation zone, the type of individuals subject to the evacuation order.
SOCMA supports CSB’s decision and reasoning to include “if known” qualifiers on these information fields – regardless of whatever reporting timeframe CSB adopts – and concurs that doing so will help facilitate prompt reporting. Even with the qualifier incorporated, CSB should have more than adequate information available in the report to facilitate coordination with other pertinent agencies and make determinations regarding deployment.
V. SOCMA Supports Allowing for Corrections to Reports
CSB proposes that submitters be allowed to revise any incorrect information in their report, without risk of penalty, for 30 days after the submission of a report to the NRC or CSB. SOCMA strongly supports the ability to correct any erroneous filing, as doing so recognizes that information immediately available after an accidental release may not always be as precise or accurate as desired by all parties. SOCMA appreciates CSB’s affirmation that its proposal “is not intended to create a trap for any owner/operator submitting a report on short notice based on the best available information.” Creating a 30-day safe harbor from enforcement will also promote correction and thus improve the accuracy of CSB’s database.
VI. SOCMA Supports Only Making Reports Available in Response to FOIA Requests
CSB states that the Clean Air Act does not require the immediate disclosure of accidental release report information, and hence the procedures governing release of records obtained pursuant to this reporting rule would be those established by the Freedom of Information Act. SOCMA agrees that CSB should make reports only available via FOIA request, rather than create an automatic disclosure process. Such report information is by nature both (i) sensitive and (ii) subject to error, due to the confusion associated with significant releases and the short reporting window. Disclosure via FOIA request should help minimize the propagation of erroneous reports through the news or social media and promote more accurate accounts of developments.
VII. SOCMA Supports an Enforcement Grace Period and Compliance Assistance Outreach
CSB proposes a grace period of one year for non-knowing violations, as well as for instances where the owner/operator may not be able to report an accidental release within four hours as a result of immediate response actions. CSB also notes that releases at smaller facilities with a limited number of employees will also require special consideration regarding enforcement. SOCMA agrees that CSB should provide an adequate grace period and that the agency should be flexible in such instances where circumstances at a facility may inhibit prompt reporting.
CSB notes in the proposal that of the 1,923 relevant incidents identified over the prior 10-year period, approximately 1,625 events occurred among 441 distinct, six-digit NAICS code industry sectors, with 19 NAICS codes representing a small plurality (26%) of repeat incidents. The sheer number of industry sectors impacted by this rulemaking indicates that CSB needs to engage in extensive compliance education outreach before the rule’s requirements go into effect. CSB would benefit from having such time to publish compliance guidance resources and educate stakeholders. SOCMA therefore recommends that CSB go one step further and set a delayed effective date for the rule of six months after the final rule has been published in the Federal Register. (For example, assuming the rule is finalized on February 4, 2020, per the court ordered deadline, the effective date would be August 4, 2020.)
CSB notes that it “has encountered . . . cases in the past [where] the owner/operator may not be able to report an accidental release within four hours, especially if ongoing response activities require attention,” and it solicits input regarding what exceptions should be made for owner/operators with small facility operations and few employees. At the outset of these comments, SOCMA noted that, at many facilities, a single individual may be in charge of all emergency-related activities. SOCMA recommends that CSB track its experience over the first year of implementation of the new rule, maintaining records of response times, causes of reporting delays, and correlations of such events to the size and characteristics of facilities. Data collected during this year may be useful in determining what number of employees and what longer time frame might be appropriate for small businesses.
SOCMA values its relationship with the CSB and appreciates the opportunity to provide comments on the proposed accidental release reporting rule. SOCMA would welcome further discussion with the CSB on the proposal to ensure it is both practically implemented and minimally burdensome. If you have any questions about these comments, please contact me at email@example.com or 571-348-5122.
 84 FR 67899 (December 12, 2019).
 84 FR 67906.
 Compare 29 C.F.R. § 1904.7(a)(emphasis added) with proposed 40 C.F.R. § 1604.2.
 29 C.F.R. §§ 1904.39(a)(1) and 1904.39(a)(2).
 42 U.S.C. § 7412(r)(6)(C)(iii).
 84 FR 67900.
 Proposed 40 C.F.R. § 1604.3(d).
 84 FR 67908.
 84 FR 67909.
 84 FR 67909.