Audit, Compliance and Risk Blog

Chemical Safety Board Finalizes Chemical Incident Reporting Rule

Posted by Jon Elliott on Fri, Feb 28, 2020

Hazmat 2The federal Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB –conducts independent investigations of major chemical accidents, issues accident-specific findings, and offers specific or general recommendations for improved chemical handling and regulation (I wrote about one set of proposals here). For the thirty years since its authorization in the 1990 Clean Air Act (CAA) Amendments, CSB was also directed to establish chemical accident reporting regulations, but instead relied on forwarded reports from the National Response Center (NRC) and Occupational Safety and Health Administration (OSHA), and on media reports of chemical releases, as the starting point for determining when and how to investigate.

CSB has now issued its final “Chemical Incident Reporting Rule” (actually 6 rules, in a new 40 CFR pat 1604), finalizing a proposal issued in December 2019 (which I wrote about here) in response to a court order to do so. The final version includes some changes from last year’s proposal. CSB extended the deadline for reports, and limited required reporting to critical information required for the CSB to make "informed decisions about its jurisdiction, interagency coordination, and deployment decision-making.”

Which Accidental Releases are Covered?

CSB’s new rules require reporting of an accidental release of any regulated substance or extremely hazardous substance (EHS) that results in a fatality, serious injury, or substantial property damage. CWB’s proposal includes definitions of these highlighted terms; some definitions are drawn from other regulations issued by the Environmental Protection Agency (EPA) and OSHA.

  • Accidental release prevention means “an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.” For these rules:

  • “Regulated substance” is one of the materials regulated by EPA as part of its Accidental Prevention Program (ARP) (I wrote about recent ARP rule revisions here)

  • “Extremely hazardous substance (EHS)” 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 [EPA]…” This open-ended definition means that stationary sources will not know in advance which chemicals are regulated

  • “Ambient air” means “any portion of the atmosphere inside or outside a stationary source.” Note that this includes OSHA-regulated workplaces, and outside air inside or outside facility boundaries (I discussed recent EPA revisions to its CAA definition of ambient air here)

  • 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.” This definition repeats the statutory definition in the CAA, and EPA’s ARP rules; however, note that a facility could also be a stationary source for a non-ARP EHS.

  • Fatality, serious injury, or substantial property damage covers several outcomes:

    • Fatality is undefined, but presumably means a death

    • Serious injury means any injury that results in death or in-patient hospitalization (borrowing OSHA’s terminology; this changed from CSB’s proposal) (I wrote about OSHA requirements here)

    • Substantial property damages means “estimated property damage at or outside the stationary source equal to or greater than $1,000,000.

How are These Accidents to be Reported?

CSB proposes two sets of reporting requirements, depending on whether reporting is also made under the Superfund law:

  • if reporting has been made to the National Response Center (NRC) in compliance with 40 CFR section 302.6 (report release of a “reportable quantity (RQ) of a Superfund-listed hazardous substance), then CSB’s requirement will be met by submitting CSB a copy of the NRC identification number of the report within 30 minutes (CSB has proposed immediate followup reporting).

  • otherwise, submit a report to CSB (at or 202/261-7600) within 8 hours after the release (CSB had proposed 4 hours), with the following information as applicable:

    • The name of, and contact information for, the owner/operator;

    • The name of, and contact information for, the person making the report;

    • The location information and facility identifier;

    • The approximate time of the accidental release;

    • A brief description of the accidental release;

    • An indication whether one or more of the following has occurred: Fire; Explosion; Death; Serious injury; or Property damage;

    • The name of the material(s) involved in the accidental release, the Chemical Abstract Service (CAS) number(s), or other appropriate identifiers;

    • If known, the amount of the release;

    • If known, the number of fatalities;

    • If known, the number of serious injuries;

    • Estimated property damage at or outside the stationary source;

    • Whether the accidental release has resulted in an evacuation order impacting members of the general public and others, and, if known: The number of people evacuated; Approximate radius of the evacuation zone; and the type of individuals subject to the evacuation order (i.e., employees, members of the general public, or both).

CSB’s final rules allow multiple parties who might have reporting responsibilities at the same source to issue a single consolidated report.

What Additional Administrative Provisions Apply?

Reporting parties can issue revised reports within 30 days (which can be extended to 90 days with a written justification for the late revisions). CSB will allow public access to documents, but only by making Freedom of Information Act (FOIA) requests – note that other report-receiving agencies routinely provide at least some information on their websites. CSB will forward information about suspected violations to EPA for enforcement action under the Superfund law.

What’s Next?

The rules are effective March 23, 2020. Thousands of facilities throughout the US manage quantities of materials that could be reportable to CSB if released. Accordingly, facilities should now be reviewing their chemical inventories, and their release reporting procedures, to ensure they’re ready to comply with these new rules.

Self-Assessment Checklist 

  • Do any of my organization’s facilities manage chemicals that are subject to EPA’s Accidental Release Prevention (ARP) rules?

  • Do any of my organization’s facilities manage chemicals that listed as hazardous substances by EPA under the Superfund law, in quantities that meet or exceed applicable Reportable Quantities?

  • Does each such facility have procedures in place to make all required release reports, based on the type, quantity and location of a spill or other release?

  • Has each such facility reviewed its release reporting procedures to include reporting to CSB if necessary?

Where Can I Go For More Information? 

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. 

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About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:


photo credit: North Carolina National Guard Operation Vigilant Catamount via photopin (license)