[Federal Register Volume 74, Number 121 (Thursday, June 25, 2009)]
[Proposed Rules]
[Pages 30259-30263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14835]



40 CFR Chapter VI

[Docket No. CSB-09-01]

Chemical Release Reporting

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Advance notice of proposed rulemaking.


SUMMARY: The Clean Air Act requires that the Chemical Safety and Hazard 
Investigation Board (CSB) establish a regulation which would require 
that accidental chemical releases be reported to the CSB or to the 
National Response Center. With this advance notice of proposed 
rulemaking, the CSB seeks to obtain comments on how best to proceed 
with implementing this requirement. The CSB will use this information 
in the development of a proposed and then a final rule.

DATES: Written comments must be received by the CSB on or before August 
4, 2009.

ADDRESSES: You may submit written comments, identified by docket number 
CSB-09-01, by either of the following methods:
     E-mail: [email protected]. Include CSB-09-01 in the subject 
line of the message.
     Mail/Express delivery service: Chemical Safety and Hazard 
Investigation Board, Office of General Counsel, Attn: C. Kirkpatrick, 
2175 K Street, NW., Suite 650, Washington, DC 20037.
    Instructions: All comment submissions must include the agency name 
and docket number. All comments received, including any personal 
information provided, will be made available to the public without 
modifications or deletions. For detailed instructions on submitting 
comments electronically, including acceptable file formats, see the 
``Electronic Submission of Comments'' heading in the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: For information on access to the docket to read comments 
received by the CSB, see the ``Inspection of Comments'' heading in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Christopher Kirkpatrick, at (202) 261-



Statutory Requirement

    The CSB was established by the Clean Air Act Amendments of 1990. 
The statute directs the CSB, among other things, to:

    [I]nvestigate (or cause to be investigated), determine and 
report to the public in writing the facts, conditions, and 
circumstances and the cause or probable cause of any accidental 
release resulting in a fatality, serious injury or substantial 
property damages; and
    [R]ecommen[d] measures to reduce the likelihood or the 
consequences of accidental releases and propos[e] corrective steps 

[[Page 30260]]

make chemical production, processing, handling and storage as safe 
and free from risk of injury as is possible. * * *

42 U.S.C. 7412(r)(6)(C)(i) and (ii).

    The CSB's enabling legislation also includes a requirement that the 

    [E]stablish by regulation requirements binding on persons for 
reporting accidental releases into the ambient air subject to the 
Board's investigatory jurisdiction. Reporting releases to the 
National Response Center, in lieu of the Board directly, shall 
satisfy such regulations. The National Response Center shall 
promptly notify the Board of any releases which are within the 
Board's jurisdiction.

42 U.S.C. 7412(r)(6)(C)(iii).

    The statute also directs the Administrator of the Environmental 
Protection Agency (EPA) to enforce the reporting requirements 
promulgated by the CSB. See 42 U.S.C. 7412(r)(6)(O).
    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. With the development of the Internet 
and other new information sources, the CSB has maintained that it could 
learn of most serious chemical accidents from these sources along with 
reports of chemical releases required to be filed with the National 
Response Center for purposes of timely identification of incidents 
appropriate for CSB on-site investigations. The CSB has not attempted 
to systematically conduct national surveillance activities of chemical 
incidents or releases.

Recommendations To Implement Reporting Rule

    In 2004, the 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.) Recently, the 
Government Accountability Office (GAO) also recommended that the CSB 
fulfill its statutory obligation by issuing a reporting regulation. 
(U.S. Government Accountability Office, Chemical Safety Board: 
Improvements in Management and Oversight Are Needed, GAO-08-864R, Aug. 
22, 2008, at 11.)
    The CSB recognizes that a reporting regulation is clearly required 
by the statute. Based on these audit recommendations and its own more 
recent experience, the CSB has concluded that a reporting rule would 
also be helpful to the CSB in improving the timeliness, completeness, 
and accuracy of the information it now collects on chemical incidents. 
For example, the CSB recognizes that there is sometimes a delay between 
some chemical incidents and media coverage and that a rule could 
potentially improve the CSB's ability to learn of certain incidents in 
a timelier manner before an accident site is disturbed or evidence is 
lost. The CSB also recognizes that a requirement to report certain 
information on chemical incidents, in addition to fulfilling its 
statutory mandate, could help the agency develop better information on 
chemical incidents occurring in the United States, and help both the 
agency and other organizations to identify issues and trends, and 
thereby further the cause of preventing chemical incidents. For these 
reasons, the CSB now intends to promulgate and implement a reporting 
rule as required by its enabling legislation after collecting input 
from all interested parties.

Important Issues

    Some of the more important issues for the CSB's consideration and 
for public comment are as follows:

Purpose of Rule--Incident Notification and Collection of Incident Data

    In the past, the CSB has argued that the sole purpose of a 
reporting regulation is to inform the CSB of major incidents warranting 
the deployment of investigators. (GAO-08-864R, at 70.) GAO has 
suggested 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.) These goals 
are typically those of a comprehensive surveillance program. Due to 
this focus on surveillance goals and more accurate incident data (as 
opposed to mere notification), it is important to describe how the CSB 
has previously collected such information and what it hopes to achieve 
in promulgating a rule.
    The CSB described the process it uses for receiving notice of and 
determining whether to investigate chemical incidents in a 2006 report 
to Congress:

    The CSB has a designated chemical incident screener on duty 24 
hours a day, seven days a week. A combination of notification 
services including the National Response Center, the National 
Transportation Safety Board [NTSB] Communications Center, and 
various news outlets, serve as sources of information to identify 
chemical incidents as they occur. The incidents in the database do 
not comprise an exhaustive list of all chemical incidents that 
occurred in the country on any given day. Incidents logged in the 
CSB incident-screening database are scored using a formula that 
measures several factors relevant to its potential selection for 
investigation. These factors include: Injuries/fatalities; public 
evacuation; ecosystem damage; potential for consequences; learning 
potential; property losses; public concern; history of the company.
    The factors assessing public and worker injuries and fatalities 
are given greater weight in the scoring system. Once scored, the 
factors are averaged, and based on the numerical score the incident 
is then assigned a priority level * * *. Deployment decisions are 
made in accordance with the CSB incident selection protocol. The 
decision to deploy a team of investigators to the site of a chemical 
incident often needs to be made before an incident can be scored 
with complete certainty. Consequently, incidents may be re-scored if 
new information is obtained on site.

(Chemical Safety and Hazard Investigation Board, Report on Chemical 
Incident Screening Database, Feb. 2006, at 3.)

    With some refinements, this is essentially the process that the CSB 
uses today for learning of incidents and making investigation 
deployment decisions. The agency has discontinued its contract with the 
NTSB Communications Center, but continues to rely on reports from the 
National Response Center and from media sources. As the agency has 
added news services and as internet search engines have become more and 
more powerful, the number of incidents that are logged into the CSB's 
system has increased substantially, from about 600 per year when CSB 
began keeping a somewhat rudimentary database of ``screened'' 
incidents, to over 1,000 incidents per year currently. The sole source 
of information for the majority (approximately two-thirds) of screened 
incidents is media reports. (OIG-04-04, at 14 n. 37; M.R. Gomez, et 
al., The CSB Incident Screening Database: Description, Summary 
Statistics and Uses, J. Hazard. Mater. 159 (2008) 119-129.) Reports of 
most serious incidents (which are the ones most likely to involve 
deploying investigators) are

[[Page 30261]]

very often received from media sources first, even if the incident is 
also reported to the National Response Center and the report forwarded 
to the CSB later. This is significant, because the CSB seeks to make 
deployment decisions as quickly as possible so that investigators can 
arrive at the accident site within the first 24 to 48 hours after the 
time of the initiating event, in order to begin the investigation while 
the evidence is less likely to be disturbed and the witnesses' 
testimony is fresh. Thus, the CSB believes that a reporting rule would 
complement, rather than replace, the existing mechanisms by which the 
CSB typically learns of chemical incidents.
    The CSB's collection of incident information thus was an outgrowth 
of the CSB's effort to make its incident selection process more 
transparent and predictable, and was not done with the intention of 
establishing a formal national surveillance system or creating a valid 
and reliable chemical incident database. However, GAO noted that the 
CSB has sometimes used the database, in testimony to Congress and in 
other contexts, to give a sense of the scope of serious chemical 
incidents. GAO further noted the problems of accuracy and completeness 
with the information on incidents in the database:

    We found that CSB lacks a long-term strategy to improve quality 
controls, and the data [in the database] remain somewhat inaccurate 
and incomplete. For example, when we analyzed a subset of accidents 
in the database involving fatalities and injuries, we found at least 
five accidents (about 6 percent of the cases reviewed) where 
fatalities were not correctly recorded in the database. We also 
found seven accidents (about 4 percent of the cases reviewed) where 
data on injuries were missing as a result of incomplete data entry. 
Moreover, CSB does not have procedures to ensure that data has been 
entered accurately. The lack of data-reporting regulations and these 
data quality problems limit CSB's ability to target its resources, 
identify trends and patterns in chemical accidents, and prevent 
future similar accidents.

(GAO-08-864R, at 7.)

    The CSB has already taken steps to improve the accuracy of 
information on chemical incidents that it collects, including software 
changes and supervisory controls on data entry. The CSB foresees that a 
reporting rule will further its current efforts to improve data 
collection and would permit more accurate surveillance of chemical 

Coordination With Other Chemical Incident Reporting Requirements

    The CSB has previously noted that EPA, the Occupational Safety and 
Health Administration (OSHA), and the Agency for Toxic Substances and 
Disease Registry (ATSDR) all collect chemical incident information for 
various purposes. (GAO-08-864R, at 70.) In drafting a new requirement, 
the CSB will seek to avoid unnecessary duplication with various other 
reporting requirements.
    Specifically, the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) requires that companies 
immediately report to the National Response Center releases over the 
reportable quantities of any of several hundred listed hazardous 
substances and other substances with hazardous characteristics. See 42 
U.S.C. 9603; see also 40 CFR 302.4 (table of hazardous substances 
reportable under this section of CERCLA). The Emergency Planning and 
Community Right to Know Act (EPCRA) requires that companies report 
hazardous chemical releases potentially affecting the public to the 
Local Emergency Response and State Emergency Response office. For 
certain companies, the EPCRA also requires annual reports of releases 
of listed toxic chemicals during the previous 12 months. See 42 U.S.C. 
11004, 11023. Facilities that are subject to the Risk Management 
Program (RMP) rule must report annually on any accidental releases that 
are reportable under that rule. See 42 U.S.C. 7412(r)(7)(B)(i)-(ii) 
(mandating the Risk Management Program and regulatory scheme); see also 
40 CFR part 68 (the Chemical Accident Prevention Provisions (CAPPs) 
that include the RMP rules); 40 CFR 68.130 (listing the reportable 
substances under the RMP). Workplace fatalities, including those caused 
by accidental chemical releases, must be reported within eight hours to 
OSHA. See 29 CFR 1904.39.
    ATSDR has collected information about chemical incidents from more 
than a dozen states for several years--although the data have some 
limitations, such as the exclusion of incidents related to petroleum 
products. The program is called the Hazardous Substances Emergency 
Events Surveillance (HSEES), and information about its history can be 
found at http://www.atsdr.cdc.gov/HS/HSEES/index.html. The ATSDR has 
expressed interest in building upon its current efforts. Its Web page 
also contains information about this effort.

Threshold for Report

    The CSB's current resources limit the number of detailed 
investigations it can conduct each year, and the CSB believes that an 
initial notification reporting rule should likely focus on selected, 
high-consequences events (for example, incidents that result in death, 
serious injuries requiring in-patient hospitalization, large public 
evacuations, very substantial property damage, or acute environmental 
impact). Such an approach to notification for high consequence events 
and reporting for others would reduce the reporting burden on industry 
and the volume of information to be collected and managed. Based on 
available information, the CSB believes there are likely to be at most 
a few hundred incidents throughout the country each year that would 
require reporting to the CSB if the threshold is set at a level to 
capture serious consequences or substantial near miss situations. Of 
course, limiting the threshold for reporting an incident would not 
limit the CSB's investigatory jurisdiction.

Statutory Definitions

    The CSB notes that existing chemical release reporting requirements 
are generally triggered by a list of chemicals and a threshold amount 
for each chemical. On the other hand, the CSB may investigate any 
incident resulting in serious consequences (fatality, serious injury, 
or substantial property damage) that involves an emission into the 
ambient air of any RMP-listed hazardous substance or other extremely 
hazardous substance, no matter what quantity is present or released. 
See 42 U.S.C. 7412(r)(2)(A), 7412(r)(6)(C)(i). The CSB has not defined 
such terms as ``ambient air,'' ``extremely hazardous substance,'' 
``serious'' injury, or ``substantial'' property damage, but would 
likely need to do so in promulgating a rule.

Collection of Initial Report

    A rule could require that a report be made directly to the CSB 
through an electronic form on the CSB Web site, or to the National 
Response Center, as provided by the CSB's enabling statute. With 
respect to the latter option, the legislative history of the CSB 
statute further explains:

    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 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 

[[Page 30262]]

whenever an accidental release requiring an investigation has 

S. Rep. No. 101-228, at 236 (1989), reprinted in 1990 U.S.C.C.A.N. 
3385, 3620.

    Among other considerations, cost is a concern with using the 
National Response Center as a receiving point for reports to the CSB. 
The CSB received a preliminary estimate from the National Response 
Center that establishing and operating a dedicated CSB reporting line 
(toll-free telephone number) would cost $450,000 per year.

Compliance Education

    Because the chemical accidents that the CSB can investigate may 
occur at a wide range of companies and operations but are relatively 
infrequent events, a rule could apply to many parties which could 
potentially, but likely will not, experience a serious chemical 
incident at some point. Most of those parties would have no direct 
contact with the CSB unless a serious incident occurred. Thus, the CSB 
must also consider how best to educate potentially affected parties 
about compliance with any final rule.


    The CSB has identified four general approaches for implementing the 
statutory requirement, as described below, but is open to additional 
    (1) A comprehensive approach would require the reporting of 
information on all accidental releases subject to the CSB's 
investigatory jurisdiction. The CSB is concerned that this approach 
might be unnecessarily broad in scope, duplicative of other federal 
efforts concerning chemical incident surveillance, and may not be 
necessary for the CSB to learn of most significant incidents that would 
justify an on-site investigation.
    (2) A targeted approach would require reporting of basic 
information (e.g., location, date, and time of incident; chemical 
involved; number of injuries) for incidents that met significant 
consequence thresholds (incidents that result in death, serious 
injuries requiring in-patient hospitalization, large public 
evacuations, very substantial property damage, or acute environmental 
impact). Such an approach would be consistent with that taken by 
several other federal agencies, whose accident reporting rules 
incorporate the same or similar consequence-based criteria. Examples of 
this type of rule include the NTSB railroad accident notification rule 
(49 CFR 840.3); Department of Transportation rules on notification of 
hazardous materials accidents (49 CFR 171.15), gas pipeline accidents 
(49 CFR 191.5), and hazardous liquid pipeline accidents (49 CFR 
195.50); and the OSHA work-related accident reporting rule (29 CFR 
    A related approach would require reports from certain high risk 
facilities no matter what the specific consequences of the incident. 
For example, the EPA Office of Inspector General recently issued a 
report which identified three different approaches to identifying high 
risk facilities covered by the RMP rule. (U.S. Environmental Protection 
Agency, Office of Inspector General, EPA Can Improve Implementation of 
the Risk Management Program for Airborne Chemical Releases, 09-P-0092, 
Feb. 10, 2009, at 17). Similar criteria could be employed in a rule to 
require that certain facilities promptly report incidents to the CSB.
    Based on such targeted reports, the CSB could determine whether the 
owner/operator would be required to submit additional, detailed 
information to the CSB for evaluation and further investigation.
    (3) A third approach would require owners or operators to report to 
the CSB more extensive information on chemical incidents in their 
workplace when notified by the CSB. The agency would continue to rely 
primarily on existing sources for initially learning of chemical 
incidents, but would follow up on a subset of the incidents (e.g., 
those with the most serious consequences, based on initial reports, and 
a sample of all others) to gather additional information through a 
questionnaire or on-line form that the reporting party would be 
required by the rule to complete and submit to the CSB. This approach 
would be primarily aimed at addressing the data quality problems of 
accuracy and completeness of information on incidents in the CSB's 
incident database. It would also allow the CSB to collect more complete 
and in-depth information on incidents than is generally available in 
the minutes and hours immediately after an incident. For example, the 
information required could go beyond the location, date, and time of 
incident, and also include information on the materials involved, the 
nature of the incident (e.g., chemical reaction, untested presence of 
flammables, etc.), and type of operation, as well as more complete 
information on consequences. This approach would formalize what the CSB 
screening personnel currently do, i.e., follow up (primarily by 
telephone) with companies and responders on approximately 60 incidents 
each year to gather detailed information on the consequences, as well 
as the processes and chemicals involved, beyond what is contained in 
media or NRC reports.
    (4) A fourth approach to a reporting requirement could be based 
upon the presence or release of specified chemicals and specified 
threshold amounts. However, CSB investigations have shown that serious 
consequences may and do result from the release of relatively small 
amounts of chemicals, and from chemicals that are not likely to be 

Information Sought

    The CSB seeks comments and information in advance of drafting a 
proposed regulation to implement the accidental release reporting 
requirement. In addition to comments addressing the issues and 
approaches described above, the CSB is also interested in comments that 
address the following specific questions:
     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 
     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?
     What specific factors (such as lists of chemicals or 
specific consequences) should the CSB consider in drafting a proposed 
     How should the CSB gather information on incidents (such 
as combustible dust explosions and reactive chemical incidents) that 
may not involve specifically listed hazardous substances?
     How might this reporting requirement best be tailored to 
avoid duplication with existing sources of information on chemical 
incidents, including federal, state, or local reporting requirements?
     How might the CSB best target compliance education 

Electronic Submission of Comments

    You may submit comments by e-mail to: [email protected]. Please include 
CSB-09-01 in the subject line of the message. Comments may be submitted 
in the body of the e-mail message or as an attached PDF, MS Word, or 
plain text

[[Page 30263]]

ASCII file. Files must be virus-free and unencrypted. Please ensure 
that the comments themselves, whether in the body of the e-mail or 
attached as a file, include docket number CSB-09-01 and your full name 
and address.

Inspection of Comments

    All comments received by the CSB will be available to the public 
upon request. To obtain copies of the comments or arrange an 
appointment to inspect the comments at CSB headquarters (2175 K Street, 
NW., Suite 650, Washington, DC 20037) during normal business hours, 
please call the CSB at (202) 261-7600.

    Dated: June 18, 2009.
John S. Bresland,
Chairman, Chemical Safety and Hazard Investigation Board.
[FR Doc. E9-14835 Filed 6-24-09; 8:45 am]