Accidental Release Reporting, 67899-67910 [2019-26495]

Download as PDF Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules control the EtO. One advantage of this sterilization approach is a reduction of EtO fugitive emissions due to the elimination of the step in which product is moved from the sterilization chamber to the aeration equipment. The EPA is seeking information and comment on the viability of replacing traditional EtO sterilization operations with combination sterilizers. The EPA is also seeking information on the emissions associated with combination sterilizers relative to traditional sterilizers; the control devices typically used for these types of chambers; costs associated with operating emissions controls for combination EtO sterilizers; and the number of facilities currently using combination sterilizers (Comment C–18). 3. Sterilization Facilities Owned by Small Businesses As discussed in section III of this ANPRM, small businesses make up a significant portion of the EtO Commercial Sterilization and Fumigation Operations source category. Given their prevalence within this industry, it is important that the EPA understand any technical or process differences between facilities owned by small businesses and facilities in the rest of the source category. Specifically, the EPA requests comment on the extent to which facilities owned by small businesses may differ operationally from facilities operated by larger businesses, including whether the emissions profiles differ consistently. The EPA also solicits comment on whether small businesses tend to own small facilities, and whether small businesses tend to use processes that have higher or lower emissions (Comment C–19). khammond on DSKJM1Z7X2PROD with PROPOSALS 4. Other Distinctions Among Sterilization Facilities While the EPA has noted differences between the types of sterilization facilities mentioned above, the EPA is also soliciting comment on whether there are other types of sterilization facilities that are markedly different in terms of processes, operations, costs, or environmental impact when compared with traditional sterilization facilities (Comment C–20). V. Statutory and Executive Order Reviews Additional information about statutes and relevant Executive Orders can be found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. Under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is a VerDate Sep<11>2014 17:10 Dec 11, 2019 Jkt 250001 significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. This action does not propose or impose any requirements, and instead seeks comments and suggestions for the Agency to consider in possibly developing a subsequent proposed rule. Should the EPA subsequently determine to pursue a rulemaking, the EPA will address relevant statutes and Executive Orders as applicable to that rulemaking. Dated: December 5, 2019. Andrew R. Wheeler, Administrator. [FR Doc. 2019–26804 Filed 12–11–19; 8:45 am] BILLING CODE 6560–50–P CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD 40 CFR Part 1604 [Docket Number: CSB–2019–0004] RIN 3301–AA00 Accidental Release Reporting Chemical Safety and Hazard Investigation Board. ACTION: Notice of proposed rulemaking. AGENCY: This proposed rule describes when an owner or operator is required to file a report of an accidental release and the required content of such a report. The purpose of the proposed rule is to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria. DATES: Comments must be submitted by January 13, 2020. ADDRESSES: You may send comments, identified by docket number and/or RIN number, by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Email: reportingrule@csb.gov. Include docket number and/or RIN number, 3301–AA00, in the subject line of the message. • Mail: Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW, Suite 910, Washington, DC 20006, ATTN: Reporting Rule Comment. Instructions: All submissions must include the agency name and docket number, CSB–2019–0004, or Regulatory Information Number, 3301–AA00, for this rulemaking. For detailed instructions on sending comments and SUMMARY: PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 67899 additional information on the rulemaking process, see the ‘‘Public Participation and Request for Comments’’ heading of the SUPPLEMENTARY INFORMATION section of this document. Docket: For access to the docket to read background documents or comments received, go to http:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: If you have questions about this proposed rule, call or email Mr. Thomas Goonan, General Counsel of the Chemical Safety and Hazard Investigation Board, by telephone at 202–261–7600, or by email at rulemaking@csb.gov. SUPPLEMENTARY INFORMATION: The enabling statute of the Chemical Safety and Hazard Investigation Board (CSB) provides that the CSB ‘‘shall establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigative jurisdiction.’’ 42 U.S.C. 7412(r)(6)(C)(iii). The proposed rule is intended to satisfy this statutory requirement. Background The CSB was established by the Clean Air Act Amendments of 1990. The statute directs the CSB, among other things, to investigate and report on any accidental release ‘‘resulting in a fatality, serious injury or substantial property damages.’’ 42 U.S.C. 7412(r)(6)(C)(i) and (ii). The statute also requires the CSB to issue a rule governing the reporting of accidental releases to the CSB. 42 U.S.C. 7412(r)(6)(C)(iii). 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 releasereporting requirement as envisioned in the CSB enabling legislation. In 2004, the DHS 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.) In 2008, the Government Accountability Office (GAO) also recommended that the CSB fulfill its statutory obligation by issuing a reporting rule. (U.S. Government Accountability Office, ‘‘Chemical Safety Board: Improvements in Management E:\FR\FM\12DEP1.SGM 12DEP1 67900 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules and Oversight Are Needed,’’ GAO–08– 864R, Aug. 22, 2008, at 11.) On June 25, 2009, the CSB submitted an Advanced Notice of Proposed Rulemaking (ANPRM) entitled ‘‘Chemical Release Reporting,’’ at 74 FR 30259–30263, June 25, 2009. The ANPRM outlined four potential approaches to accidental release reporting and requested additional information for developing a proposed rule. Specifically, the CSB sought comments in response to several specific questions, including but not limited to the following: • 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 requirement? • 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? 74 FR 30262. In response to the ANPRM, the CSB received 27 comments from a variety of interested parties. These comments are included as part of the docket for this rulemaking and labeled for reference as CSB–ANPR0901–000001 to CSB– ANPR0901–000133. On February 4, 2019, a U.S. District Court judge ordered the CSB to issue a rule requiring the reporting of accidental chemical releases to the CSB. See 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). The court directed the CSB to promulgate a final rule within 12 months of the date of the court’s final order. khammond on DSKJM1Z7X2PROD with PROPOSALS Public Participation and Request for Comments Submitting Comments If you submit a comment, please: Include the docket number for this rulemaking (USCSB–2019–0004) and/or the RIN number, 3301–AA00; indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. We recommend that you include your name and either a mailing address, an email address, or a phone number in the body of your document so that we can contact you if VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 we have questions regarding your submission. Online To submit your comments online, go to http://www.regulations.gov and find the CSB’s proposed rule. You can find a rule on regulations.gov by entering a keyword, title, RIN number, or document ID in the search area on the homepage and click the ‘‘Search’’ button. On the ‘‘Search Results’’ page, you can narrow your results with the filters on the screen. Once you find the proposed rule, click its title to view the ‘‘Document Details’’ page. Once you locate a document that is open for comment, click the ‘‘Comment Now!’’ button on either the Search Results or the Document Details page. This will display the Comment Form. You can enter your comment on the form, and attach files (up to 10 MB each). Be sure to complete all required fields. Please note that some information entered on the web form may be viewable publicly. These fields are identified by the globe icon. Once you reach the ‘‘Your Preview’’ screen, the information that will be viewable publicly is displayed directly on the form under the section titled: ‘‘This information will appear on Regulations.gov.’’ To complete your comment, you must first agree to the disclaimer and check the box. This will enable the ‘‘Submit Comment’’ button. Upon completion, you will receive a Comment Tracking Number for your comment. To learn more about comment submission, visit the ‘‘Submit a Comment’’ section of the ‘‘How to Use Regulations.gov’’ pages. Mail or Hand Delivery If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81⁄2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know if your mail reached the CSB, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change this proposed rule based upon your comments. Viewing Comments and Documents To view comments, as well as documents described in this preamble as being available in the docket, go to http://www.regulations.gov. If you do not have access to the internet, you may view the docket online by visiting the Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW, Suite 910, Washington, DC PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 20006, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Please call 202–261–7600 in advance to schedule an appointment. Regulatory Requirements Unfunded Mandates Reform Act (2 U.S.C. Ch. 25) The Act does not apply to independent regulatory agencies, 2 U.S.C. 658(1). In any event, the proposed rule does not contain a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year. Nor will it have a significant or unique effect on small governments. Regulatory Flexibility Act (5 U.S.C. Ch. 6) The Regulatory Flexibility Act (RFA) requires Federal agencies to assess the impact of a proposed rule on small entities and to consider less burdensome alternatives for rules that are expected to have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603. However, an agency is not required to prepare such an analysis for a proposed rule if the Agency head certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). For the reasons discussed below, the CSB has certified to the SBA’s Chief Counsel for Advocacy of the Small Business Administration (‘‘SBA’’) that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small businesses, small governmental jurisdictions, or small organizations. Summary of Proposal As authorized by 42 U.S.C. 7412(r)(6)(C)(iii), the CSB has proposed a rule to require an owner or operator of a stationary source to submit an accidental release report to the CSB. The proposed rule describes when an owner or operator is required to file a report of an accidental release, and the required content of such a report. The purpose of the proposed rule is to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria. The proposed accidental release reports will require only information that is already known or should be available to an owner/operator soon after an accidental release. The required information is also limited in scope to critical information required for the CSB to make informed decisions about its E:\FR\FM\12DEP1.SGM 12DEP1 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules jurisdiction, interagency coordination, and deployment decision-making. For example, paragraphs (a)–(e) require only minimal contact information and a basic description of the accidental release. Paragraph (g) requests the relevant CAS Registry Number associated with the chemical(s) involved in the accidental release. Paragraphs (h), (i), (j), and (l)(1)–(3) include an important qualifier, ‘‘if known.’’ This qualifier recognizes that some or all of this information may not be known within four hours of an accidental release. Economic Impact Small Entity Impact Although the CSB concluded that the proposed rule will not have a significant economic impact on businesses, regardless of size, the CSB nevertheless estimated how many small businesses would be impacted by the proposed rule by using the following methodology. In order to estimate the percentage of reports that would likely be filed by small businesses each year, the CSB reviewed the 1,923 accidental releases to determine how many releases could be matched to a NAICS code and how many distinct NAICS codes were represented. Of the 1,923 incidents, approximately 85 percent (1,625) had a NAICS code identifier. The 1,625 events were distributed among 441 distinct, six-digit NAICS codes.1 Because of the distribution of accidental releases among so many different NAICS codes, the CSB focused its analysis on the business types most likely to be impacted by the proposed rule: Firms with NAICS codes that appeared most often in the dataset. The CSB sorted the 1,625 releases with a NAICS code into three segments: (1) NAICS codes which appeared at least 10 times in the dataset; (2) NAICS codes which appeared between 5–9 times, and (3) NAICS codes that appeared less than 5 times. The CSB concluded that a total of 19 NAICS codes appeared 10 or more times and represented 423 separate incidents, or 26% of the 1,923 events recorded in the database. The 19 NAICS codes with at least 10 events over the pertinent time period are listed in Table 2 below. The CSB used these 19 codes as a sample to assess impact on small businesses. The CSB assumed that releases fell evenly across all businesses within each NAICS code. Based on the total number of reports for each code (column 2), the CSB calculated the percentage of 67901 accidental releases occurring within each of the 19 most frequent NAICS codes in relation to the total number of 1,923 incidents in the database. This information is summarized in Table 2, column 3. The CSB used the U.S. Small Business Administration Table of Small Business Size Standards to determine the pertinent small business standard for each of the 19 NAICS categories.2 Depending on the NAICS code, a firm’s status as a small business is determined by the number of employees or by annual revenue.3 The pertinent measure for each NAICS code, employment or revenue, is set out in Table 2 in the fourth and fifth columns. The CSB determined the total number of firms in each category, and the total number of small firms in each category, by consulting the most recent census tables summarizing data for U.S. businesses. See Table 1, columns 6 and 7. The most recent data for businesses measured by employment is from 2016.4 The most recent data for businesses measured in terms of revenue is from 2012.5 The percentage of small businesses within each NAICS code is listed in the last column of Table 2. TABLE 1—RELEASES BY NAICS CATEGORIES IN TERMS OF FREQUENCY OF RELEASES 2009–2019 khammond on DSKJM1Z7X2PROD with PROPOSALS NAICS code 324110 213112 211111 424690 213111 325199 325998 .......... .......... .......... .......... .......... .......... .......... 325211 423930 331110 221310 424720 238910 311615 325180 221320 237120 811111 713940 .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... NAICS industry name Petroleum Refineries ............................................................. Support Activities for Oil and Gas Operations ...................... Crude Petroleum and Natural Gas Extraction ....................... Other Chemical and Allied Products Merchant Wholesalers Drilling oil and gas ................................................................. All Other Basic Organic Chemical Manufacturing ................. All Other Miscellaneous Chemical Product and Preparation Manufacturing. Plastics Material and Resin Manufacturing ........................... Recyclable Material Merchant Wholesalers .......................... Iron and Steel Mills ................................................................ Water Supply and Irrigation Systems .................................... Petroleum and Petroleum Products Merchant Wholesalers Site Preparation Contractors ................................................. Poultry Processing ................................................................. All Other Basic Inorganic ....................................................... Sewage Treatment Facilities ................................................. Oil and Gas Pipeline and Related Structures Construction .. General Automotive Repair ................................................... Fitness and Recreational Sports Centers .............................. Total Number (percent) of incidents in sample (N=1,923) Size standards in millions of dollars of revenue (2012) Size standards in number of employees (2016) 54 (2.8%) 48 (2.5%) 44 (2.3%) 28 (1.5%) 27 (1.4%) 24 (1.25%) 24 (1.25%) N/A $42 N/A N/A N/A N/A N/A 1,500 N/A 1,250 150 1,000 1,250 500 96 8,877 5,658 5,912 1,795 584 1,005 * 51 8,595 * 5,558 5,410 * 1,754 * 485 924 53 98 98 92 98 83 92 20 (1.04%) 20 (1.04%) 22 (1.14%) 18 (.94%) 17 (.88%) 15 (.78%) 13 (.68%) 16 (.8%) 12 (.62%) 12 (.62%) 11 (.57%) 10 (.52%) 435 (23%) N/A N/A N/A 30 N/A 17 N/A N/A 22 40 8 8 1,250 100 1,500 N/A 200 N/A 1,250 1,000 N/A N/A N/A N/A 855 6,776 442 3,293 1,690 33,806 317 365 398 1,779 76,336 24,775 * 736 6,569 * 372 3,243 1,490 33,324 * 258 279 370 1,592 75,639 24,348 86 97 84 98 88 98 81 76 93 89 99 98 Total firms Small % Small Note 1: An asterisk appears next to numbers in the table that are estimates based on a lack of sufficiently specific census data. For example, the pertinent employment size standard for iron and steel mills set by the SBA is 1,500 employees. However, census data does not provide specific information on the number of firms with more than 1,500 employees. Instead, the highest category is 500 and more employees. Thus, for purposes of analysis, the counted firms with less than 500 employees as small firms. 1 The CSB determined that a total of 253 NAICS codes appeared only one time over 10 years. Thus, 57% (253 out of 441) of the codes involved only one incident. 2 U.S. Small Business Administration, Table of Small Business Size Standards Matched to North American Industry Classification System Codes (effective August 19, 2019), available at https:// VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 www.sba.gov/document/support--table-sizestandards. 3 Id. The SBA does set out some alternative measures for certain codes, but the CSB review used only standard measures. 4 Number of Firms, Number of Establishments, Employment, and Annual Payroll by Enterprise Employment Size for the United States, All Industries: 2016 (released 12/18/2018), available at PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 https://www.census.gov/data/tables/2016/econ/ susb/2016-susb-annual.html. 5 Number of Firms, Number of Establishments, Employment, Annual Payroll, and Estimated Receipts by Enterprise Receipt Sizes for the United States, All Industries: 2012 (released June, 22, 2015), available at https://www.census.gov/data/ tables/2012/econ/susb/2012-susb-annual.html. E:\FR\FM\12DEP1.SGM 12DEP1 67902 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules This number was then divided by 10 to obtain the number of reports anticipated each year on average from small businesses within each NAICS code.6 Table 2, column 8. Because the number of small business reports expected * * * * * The CSB then multiplied the percentage of small business within each category by the total number of reported releases in that category over the 10-year period. Table 2, column 7. annually is low, (covering a range from .91 to 4.7) for the sectors with the most identifiable releases, the CSB reasons that the impact in sectors with only a few releases over 10 years would be inconsequential. TABLE 2—EXPECTED ANNUAL REPORTS BURDEN BY SECTOR NAICS industry name NAICS code 213112 211111 324110 213111 325998 .......... .......... .......... .......... .......... 423930 325199 331110 325211 221310 424690 424720 .......... .......... .......... .......... .......... .......... .......... 238910 325180 221320 811111 237120 311615 713940 .......... .......... .......... .......... .......... .......... .......... Support Activities for Oil and Gas Operations ...................... Crude Petroleum and Natural Gas Extraction ....................... Petroleum Refineries ............................................................. Drilling Oil and Gas Operations ............................................. Miscellaneous Chemical Product & Preparation Manufacturing. Recyclable Material Merchant Wholesalers .......................... All Other Basic Organic Chemical Manufacturing ................. Iron and Steel Mills ................................................................ Plastics Material and Resin Manufacturing ........................... Water Supply and Irrigation Systems .................................... Other Chemical and Allied Products Merchant Wholesalers Petro. and Petro. Products Merchant Wholesalers (except Bulk Stations and Terminals). Site Preparation Contractors ................................................. All Other Basic Inorganic Chemical Manufacturing ............... Sewage Treatment Facilities ................................................. General Automotive Repair ................................................... Oil and Gas Pipeline and Related Structures Construction .. Poultry Processing ................................................................. Fitness and Recreational Sports Centers .............................. khammond on DSKJM1Z7X2PROD with PROPOSALS Estimated Reports per Year The CSB identified 1,923 chemical accidents in its database that occurred between January 1, 2009, and July 15, 2019. Each of these incidents involved either a fatality or hospitalization. A copy of the CSB’s database information regarding the 1,923 accidental releases is included in the docket for reference.8 The total number of annual incidents ranged from a low of 113 in 2017 to a high of 291 in 2012. Over 10.5 years, the average annual number of accidents was approximately 183. The median number of accidents per year was 169. Because the database tracked hospitalizations (as opposed to serious injuries as defined in the proposed rule), it is possible that certain incidents within the CSB’s investigatory jurisdiction are not included in the database. In addition, it is possible that the CSB’s data does not include a small number of accidental releases that resulted in a fatality. A release resulting in a fatality might have been missed if it was not reported to NRC pursuant to 6 The database covered approximately 10.5 years, but the CSB used 10 in its calculation for simplicity. 7 In order to calculate the number of small businesses, the CSB had to use two different census tables. If the size standard was based on revenue, the CSB relied on a 2012 table. If the size standard VerDate Sep<11>2014 Total businesses 7 16:25 Dec 11, 2019 Jkt 250001 Small Expected reports 2020–2030 % Small Expected— reports from small businesses— 2020–2030 Expected annual reports— small business 8,727 5,658 96 1,795 1,005 8,596 5,558 51 1,754 924 .98 .98 .53 .98 .92 48 44 54 27 24 47 43 28.29 27 22 4.7 4.32 2.87 2.64 2.2 6,776 584 442 855 3,293 5,912 1,690 6,569 485 372 736 3,243 5,410 1,487 .97 .83 .84 .86 .98 .92 .88 20 24 22 20 18 17 17 19.4 20 18.48 17.2 17.6 15.64 15 1.94 1.99 1.85 1.7 1.76 1.56 1.5 34,153 365 398 76,336 1,779 317 24,775 32,997 279 370 75,639 1,592 258 24,348 .98 .76 .93 .99 .89 .81 .98 15 16 12 11 12 13 10 14.7 12.16 11.2 10.89 11 10.5 10 1.47 1.22 1.12 1.08 1.1 1.0 .98 The CSB considered two areas of burden: Familiarization costs and reporting costs. The CSB estimated that it would take approximately 45 minutes for each firm to learn about the rule and when to report. The CSB considers this a one-time cost, which will be borne by all entities which might experience an accidental release, whether or not such a release occurs. The CSB also estimated that it would take each firm approximately 15 minutes to submit a report to the CSB following an accidental release. The CSB reviewed forms the NRC uses to guide its operators in taking release information with questions similar to those included in the CSB’s proposed form. The main difference is that the proposed CSB form had fewer data queries. The CSB asked NRC how long it typically took its operators to collect information from a caller reporting an accidental release. NRC does not break that information down based on the type of incident involved but had other relevant, informal information to share. NRC informed the CSB that it receives approximately 30,000 telephone reports each year, and the average time required for each operator to complete the call was approximately 8 minutes. The CSB conducted two simulated accidental release phone calls in which the caller was asked for the same information as is required under the proposed rule. These simulated calls also took approximately 8 minutes. Thus, the available information indicated that a was based on employment, the CSB used the 2016 table. 8 Because of the CSB’s limited resources and lack of available information, there are certain limitations to the information contained in the CSB database. The database was not designed to comprehensively collect statistically valid data concerning all accidental releases. Much of the information in the database comes from the first day of incident media reports. The CSB could only follow up on a limited number of events per year to verify information contained in the media reports. 9 During the relevant time period, the CSB relied on NRC reports and media surveillance search engines to identify releases of interest. other law or not reported in the media.9 For these reasons, the CSB recognizes that the annual average of 183 incidents may undercount a certain number of accidental releases which meet the CSB’s statutory criteria. On the other hand, the past annual average does not take into account that a certain number of full reports will not be required under the proposed rule if a party has already reported the release to the NRC under CERCLA. In light of all factors, the CSB increased its annual estimate of reports from the historic average of 183 to 200. Burden Estimate-Time PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\12DEP1.SGM 12DEP1 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules phone submission would take approximately 8 minutes. In its judgment, the CSB estimated that it would take 2–3 additional minutes to complete a screen-fillable .pdf form and email it to the CSB. To allow for some margin of error in its analysis, the CSB estimates that it will take approximately 15 minutes to submit a report, either by telephone or by emailing a form. Burden Estimate-Cost The CSB then estimated an hourly labor cost to translate the time requirement into a cost figure. In order to determine an appropriate hourly rate, the CSB identified six relevant occupation codes, the annual mean wage, and the mean hourly wage for each, based on the Bureau of Labor Statistics’ May 2018 National Occupational Employment and Wage Estimates United States.10 The CSB next combined the average hourly rate for each of the six classifications and divided that total by six. This calculation produced an average hourly rate of $37.20. This information is summarized in Table 3 below. The CSB then multiplied the average hourly wage ($37.20) by the total time requirement for the first year of one (1) hour (45 minutes to learn about the rule 67903 and 15 minutes to submit a report). This calculation resulted in an estimated perbusiness compliance cost during the first year of $37.20. However, not all businesses will need to file a report during the first year or each year thereafter. Further, some businesses who need to file a report each year will not have to submit a full report to the CSB if the firm has already reported the event to the NRC under CERCLA. Based on the minimal per business cost, the CSB has concluded that the proposed rule will not have a significant economic impact on any business, regardless of size. TABLE 3—OCCUPATIONAL CLASSIFICATIONS AND WAGES Occupational code 13–1041 17–2081 17–2110 17–1111 17–3025 17–3026 ............................ ............................ ............................ ............................ ............................ ............................ Occupation title Mean annual wage Compliance Officer ................................................................................................... Environmental Engineers ......................................................................................... Industrial Engineers 11 .............................................................................................. Health and Safety Engineers 12 ............................................................................... Environmental Engineering Technicians .................................................................. Industrial Engineering Technicians .......................................................................... Composite Average Hourly ...................................................................................... $72,520 92,640 91,800 93,630 54,800 58,860 ........................ Given the minimal burden of reporting imposed under the proposed rule, and the low number of reports expected from small businesses on an annual basis, the CSB concluded that the proposed rule will not have a significant economic impact on a substantial number of small entities. The CSB seeks comments on this certification, under the RFA. The CSB also requests comments on the threshold economic analysis, presented above, and its underlying assumptions. * * * * * khammond on DSKJM1Z7X2PROD with PROPOSALS Paperwork Reduction Act (44 U.S.C. Ch. 35) The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) provides that an agency generally cannot conduct or sponsor a collection of information, and no person is required to respond to, nor be subject to a penalty for, failure to comply with a collection of information unless that collection has obtained Office of Management and Budget (OMB) approval and displays a currently valid OMB Control Number. As of the date of the publication of this proposed rule, the CSB has made a PRA submission to OMB in accordance with 5 CFR 1320.5(a)(3) and immediately below has published the 10 https://www.bls.gov/oes/current/oes_nat.htm 11 Includes health and safety engineers. 12 Except Mining Safety Engineers and Inspectors. VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 Mean hourly $34.86 44.54 44.14 45.01 26.34 28.30 37.20 following notice required under 5 CFR 1320.5(a)(1)(iv): Type of Information Collection: New Collection. Title of the Collection: Accidental release report. Summary of the Collection: The proposed collection requires an owner/ operator of a stationary source to report information concerning an accidental release. Specific detail is provided in the proposed information collection request. Need for the information and proposed use of the information: The CSB is required by law to issue an accidental release reporting rule. The CSB intends to use the information to learn of any accidental release within its jurisdiction and to plan how to respond to that particular accidental release. A description of the likely respondents: The vast majority of respondents will be private sector businesses involved in the production, storage or handling of regulated substances or extremely hazardous substances. Estimated number of likely respondents per year: 200. Proposed frequency of response to the collection of information: Most respondents will only submit a response if an accidental release within the scope of the rule occurs during a given year. For the vast majority of potential respondents, the frequency of responses will likely be ‘‘none’’ in a given year. An estimate of the total annual reporting and recordkeeping burden: Reporting: The CSB estimates that approximately 200 reports will be submitted each year, and that each report will take approximately 15 minutes for each respondent to complete and submit to the CSB. Thus, the CSB estimates the total annual labor burden each year for reporting parties will be approximately 50 hours.13 The CSB then estimated an hourly labor cost to translate the time requirement into an annual cost figure. In order to determine an appropriate hourly rate, the CSB identified six relevant occupational classifications, and the annual salary for each position, based on the Bureau of Labor Statistics’ May 2018 National Occupational Employment and Wage Estimates. A full discussion of this calculation is included in the discussion above concerning the Regulatory Flexibility Act. Based on its analysis, the CSB estimated an hourly rate of $37.20 was appropriate for purposes of estimated labor cost. The CSB then multiplied the average hourly wage rate of $37.20 by the total annual time estimate of 50 13 This estimate does not include first year familiarization costs for potentially impacted firms to learn about the rule and its requirements. However, the first year familiarization cost calculation is addressed in the regulatory flexibility section of the preamble. PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\12DEP1.SGM 12DEP1 67904 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules hours to determine its total annual cost estimate of $1,860.00. Recordkeeping: There is no recordkeeping requirement. Notice that comments may be submitted to OMB: The collection of information proposed in this rule has been submitted to OMB for review under section 3507(d) of the Act. See 5 CFR 1320.8(d)(3). You may submit comments to OMB’s Office of Information and Regulatory Affairs via email to oira_submission@omb.eop.gov, Attention: Desk Officer for the CSB. Because OMB is required to make a decision concerning the proposed information collection request between 30 and 60 days following receipt, OMB must receive comments no later than January 13, 2020. Any interested person may also submit comments to the CSB regarding the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden directly. Whether submitted to OMB or the CSB, such comments should: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Address the potential to enhance the quality, utility, and clarity of the information to be collected; and • Discuss options to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. khammond on DSKJM1Z7X2PROD with PROPOSALS Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. Ch. 6) The proposed rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets. VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 National Environmental Policy Act of 1969 (5 U.S.C. 804) The proposed rule will not have significant effect on the human environment. Accordingly, this rule is categorically excluded from environmental analysis under 43 CFR 46.210(i). E-Government Act of 2002 (44 U.S.C. 3504) Section 206 of the E-Government Act requires agencies, to the extent practicable, to ensure that all information about that agency required to be published in the Federal Register is also published on a publicly accessible website. All information about the CSB required to be published in the Federal Register may be accessed at http://www.csb.gov. This Act also requires agencies to accept public comments ‘‘by electronic means.’’ Finally, the E-Government Act requires, to the extent practicable, that agencies ensure that a publicly accessible Federal Government website contains electronic dockets for rulemakings under the Administrative Procedure Act of 1946 (5 U.S.C. 551, et seq.). Under this Act, an electronic docket consists of all submissions under section 553(c) of title 5, United States Code; and all other materials that by agency rule or practice are included in the rulemaking docket under section 553(c) of title 5, United States Code, whether or not submitted electronically. Regulations.gov will contain an electronic docket for this rulemaking. Plain Writing Act of 2010 (5 U.S.C. 301) Under this Act, the term ‘‘plain writing’’ means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience. To ensure that this rulemaking has been written in plain and clear language so that it can be used and understood by the public, the CSB has modeled the language of this proposed rule on the Federal Plain Language Guidelines. National Technology Transfer and Advancement Act of 1995 Section 12(d) (15 U.S.C. 272 Note) The NTTAA requires agencies to ‘‘use technical standards that are developed or adopted by voluntary consensus standards bodies’’ to carry out policy objectives determined by the agencies, unless they are ‘‘inconsistent with applicable law or otherwise impractical.’’ The CSB has determined that there are no voluntary consensus standards that are appropriate for use in the development of this rule. PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 Congressional Review Act A final rule will be subject to the Congressional Review Act (CRA). 5 U.S.C. 801(a)(1)(A). However, a final rule resulting from this rulemaking will not be a major rule as contemplated under the CRA. See 5 U.S.C. 804(1). Discussion of the Proposed Rule The CSB proposes to add a new part to title 40 of the Code of Federal Regulations, which will appear as a new part 1604. The proposed part will consist of six sections. Proposed § 1604.1 states the purpose of the rule. Proposed § 1604.2 sets forth key definitions. Section 1604.3 sets forth who must file a report and when. Section 1604.4 describes the information required in each report. Section 1604.5 implements the enforcement provisions authorized by 42 U.S.C. 7412(r)(6)(O). Section 1604.6 confirms that the procedure for seeking records obtained pursuant to the rule is governed by the Freedom of Information Act (FOIA), 5 U.S.C. 552, the CSB’s procedural regulations for disclosure of records under the FOIA, 40 CFR part 1601, and other pertinent Federal disclosure laws. § 1604.1 Purpose The purpose of the rule is to require an owner/operator to notify the CSB promptly of any accidental release within the CSB’s investigatory jurisdiction. When the enabling legislation was adopted, there was no other reliable method for the government to learn quickly of an accidental release other than requiring that an owner/operator inform the government. A reporting rule should lead to the provision of information useful to CSB in assessing its jurisdiction and making deployment decisions. Over the years, interested parties have suggested other potential benefits of a reporting rule. For example, GAO opined 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). The CSB appreciates the points made in the GAO report. However, the CSB is mindful that its enabling legislation E:\FR\FM\12DEP1.SGM 12DEP1 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS makes clear that in mandating this reporting rule, Congress did not intend that such a rule would supplant or conflict with existing public information and safety laws, such as The Emergency Planning and Community Right to Know Act (EPCRA), which is focused on emergency response, the protection of public health and safety, and the public release of information to mitigate risks to the public.14 The CSB, thus, has focused the rule on requiring an owner/operator to promptly report an accidental release to the CSB. The CSB’s ability to propose a rule designed to achieve more than a meaningful notification is limited by the language and purpose of its enabling statute. § 1604.2 Definitions. Section 1604.2 establishes definitions for the proposed rule. A few comments in response to the ANPRM suggested that CSB use definitions established in other rules. As explained below, the CSB could not use certain existing definitions in other rules. For example, the CSB is required to use certain definitions that are established at 42 U.S.C. 7412(r)(2)(A)–(C), which provides definitions for the terms ‘‘accidental release,’’ ‘‘stationary source,’’ and ‘‘regulated substance.’’ Although not a mandatory definition, the CSB determined that one definition in section 112(r) (‘‘owner or operator’’) was appropriate and relied on that existing definition. The CSB also set forth its own proposed definitions for certain terms important to implementation of the rule. The discussion below addresses most of the proposed definitions: Accidental release means an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source. This proposed definition is adopted verbatim from 42 U.S.C. 7412(r)(2)(A). The CSB uses the statutory term ‘‘accidental release’’ throughout the rule to refer to an event meeting the specific statutory criteria under 42 U.S.C. 7412(r)(2)(A). To the extent there are references, in this or other related documents, to a ‘‘chemical accident’’ or ‘‘incident,’’ the context and specific facts will determine whether the event meets the statutory definition of an ‘‘accidental release,’’ or is instead employed generically to describe an event that may or may not satisfy the statutory definition of an accidental release. 14 See section 303 of EPCRA. VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 Ambient air means any portion of the atmosphere inside, adjacent to, or outside a stationary source. Although mentioned many times throughout the Clean Air Act, there is no statutory definition of the term ‘‘ambient air.’’ Accordingly, the CSB proposes a plain meaning definition. The plain meaning of the phrase ‘‘ambient air’’ is defined by two words— ambient, meaning ‘‘existing or present on all sides’’ and ‘‘air,’’ meaning ‘‘the mixture of invisible odorless tasteless gases (as nitrogen and oxygen) that surrounds the earth’’ (see, e.g., https:// www.merriam-webster.com/dictionary/ ambient; https://www.merriamwebster.com/dictionary/air). The CSB is aware that EPA defined the term ‘‘ambient air’’ as part of its rule implementing the National Primary and Secondary Ambient Air Quality Standards. That definition reads as follows: ‘‘Ambient air means that portion of the atmosphere, external to buildings, to which the general public has access.’’ 40 CFR 50.1(e) While this definition may work well in terms of implementation of the National Primary and Secondary Ambient Air Quality Standards, its use in the CSB’s proposed rule would undercut a primary purpose of section 112 of the Clean Air Act Amendments of 1990—to protect workers inside structures at a stationary source. Extremely hazardous substance means any substance that 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 the EPA Administrator under 42 U.S.C. 7412(r)(5). The term ‘‘extremely hazardous substance’’ is not defined in the CSB’s enabling legislation. However, 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.’’ Sen. R. 101–228 at ll (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3596. 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. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 67905 The CSB has therefore proposed a definition of ‘‘extremely hazardous substances,’’ which focuses on the consequences of a substance when it is accidentally released. Thus, an ‘‘extremely hazardous substance’’ includes any substance that alone, or in combination with other substances or factors, causes death, serious injury, or substantial property damages. Other laws or rules that define or list ‘‘hazardous substance(s)’’ may provide useful guidance as to what is an ‘‘extremely hazardous substance’’ for purposes of the CSB’s definition, but such lists or associated threshold quantities do not control the CSB’s definition. Again, the pertinent legislative history supports an expansive definition: Extremely hazardous substances would also include other agents which may or may not be listed or otherwise identified by any Government agency currently which may as the result short-term exposures associated with releases to the air cause death, injury or property damage due to their toxicity, reactivity, flammability, volatility or corrosivity. S. Rep. 101–228 at 212 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3596. For example, the CSB definition is not limited to substances listed as a ‘‘regulated substance’’ defined as such under 42 U.S.C. 7412(r)(3). The accidents which the Board is to investigate are those which result from the production, processing, handling or storage of a chemical substance (not limited to the extremely hazardous substances listed under subsection (c)) which result in a death, serious injury, or substantial property damage. S. Rep. 101–228 at 231 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3615. Thus, [extremely hazardous substances would include, but are not limited to, those substances which are specifically listed by the Administrator under subsection (c).’’ S. Rep.101–228 at 212 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3596. Nor should the CSB definition be limited by threshold quantity limits set by other laws. A ‘‘regulated substance’’ includes a ‘‘threshold quantity’’ set by the Administrator under 42 U.S.C. 7412(r)(5). The CSB definition of extremely hazardous substance does not incorporate the concept of a threshold quantity. Limiting the CSB definition by reference to threshold limits set by other laws would potentially lead to results inconsistent with the CSB’s statutory purpose. For example, the accidental release of a ‘‘regulated substance’’ that does not meet a threshold quantity can still cause serious injuries and death. There is nothing in the statutory scheme E:\FR\FM\12DEP1.SGM 12DEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 67906 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules to suggest that a death or serious injury caused by less than a threshold quantity of a ‘‘regulated substance’’ or other hazardous substance falls outside the CSB’s investigatory jurisdiction. To emphasize its broad definition and the inapplicability of a generic threshold limit, the CSB definition of ‘‘extremely hazardous substance’’ includes the phrase ‘‘including but not limited to any ‘regulated substance’ at or below any threshold quantity set by the EPA Administrator under 42 U.S.C. 7412(r)(5).’’ General public means any person except for workers, employees or contractors working for (or on behalf of) the owner or operator of a stationary source from which an accidental release has occurred and any person acting in the capacity of an emergency responder to an accidental release from a stationary source. Under its enabling legislation, the CSB is directed to treat certain investigations as mandatory. See generally 42 U.S.C. 7412(r)(E) (‘‘In no event shall the Board forego an investigation where an accidental release causes a fatality or serious injury among the general public, or had the potential to cause substantial property damage or a number of deaths or injuries among the general public.’’). The proposed definition reflects the specific statutory emphasis that the CSB investigate any accidental release that impacts or threatens people not involved directly in the operations of a stationary source. The CSB is aware that EPA has longstanding policy interpretations of ‘‘general public’’ for purposes of implementing other sections of the Clean Air Act. However, these policy interpretations are neither binding nor pertinent to the CSB’s implementation of an accidental releasereporting rule under its statutory authority. Owner or operator means any person who owns, leases, operates, controls, or supervises a stationary source. This proposed regulatory definition is adopted verbatim from 42 U.S.C. 7412(a)(9). As the enabling legislation recognizes, a stationary source may be under the ‘‘common control’’ of different entities. See 42 U.S.C. 7412(r)(2)(C). Multiple owners, leaseholders, or operators can exist alongside each other in complex business relationships such that a stationary source may be considered under the common control of two or more entities. Therefore, this definition applies to any person or entity who owns, leases, operates, controls, or supervises a stationary source, and can include parties with a joint interest, VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 partnership interest, partial ownership interest, co-ownership interest, or any otherwise co-responsible parties who, in some manner, share in the ownership, leasing, operation, control or supervision of a stationary source. These parties are in the best position to coordinate among themselves to determine which entity should file an accidental release report under this rule for an accidental release. For the purpose of efficiency, multiple owner/ operators may agree in advance or at the time of release to a single, consolidated report on behalf of one or more parties who are responsible for reporting an accidental release from a stationary source. This proposed definition allows for the owner(s)/operator(s) to decide for themselves how best to meet the requirements of the rule, as long as an accidental release report is submitted by one of the parties following an accidental release. Property damage means damage to, or the destruction of, tangible public or private property, including loss of use of that property. This definition is well established for purposes of commercial liability insurance policies, and therefore most owner/operators should be familiar with its meaning and have no difficulty in determining whether there has been any property damage. In addition, the proposed definition confirms that pertinent property damage is not limited to the stationary source, but also includes damage to private property (e.g., homes) and public property outside the stationary source. Regulated substance means any substance listed by the EPA Administrator pursuant to the authority of 42 U.S.C. 7412(r)(3). This definition is based on the definition at 42 U.S.C. 7412(r)(2)(B). The statute simply refers to ‘‘substances listed under paragraph (3).’’ For clarity, the definition here refers to the full citation at 42 U.S.C. 7412(r)(3) in order to encompass the ‘‘List of Substances.’’ Serious injury means 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. As suggested by comments in response to its ANPRM, this definition is based on OSHA’s regulations pertaining to Recording and Reporting Occupational Injuries and Illness, found at 29 CFR 1904.7. Although OSHA’s PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 regulatory requirement focuses on ‘‘significant’’ injuries, the CSB finds the word ‘‘significant’’ to be generally synonymous with the word ‘‘serious’’ in this context (compare https:// www.merriam-webster.com/dictionary/ significant?utm_campaign=sd&utm_ medium=serp&utm_ source=jsonld#synonyms and https:// www.merriam-webster.com/dictionary/ serious). The CSB further concluded that use of an existing OSHA definition would contribute to greater understanding among the regulated community and help to ensure faster and more effective compliance with the new regulation. Stationary source means any buildings, structures, equipment, installations 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. This definition is taken verbatim from 42 U.S.C. 7412(r)(2)(C). While this definition reiterates longstanding statutory language, the CSB notes that the phrase ‘‘same industrial group’’ requires some additional clarification. The CSB interprets this phrase as referring to ‘‘industry group’’ under the Standard Industrial Classification system (SIC), which was in common use when the Clean Air Act Amendments of 1990 were signed into law. SIC employed a four-digit classification system; the first three digits in the fourdigit sequence indicated the ‘‘industry group.’’ In 1997, the SIC system was replaced by North American Industry Classification System (NAICS). NAICS employs a six-digit classification system. Under NAICS, the fourth digit in the six-digit sequence indicates industrial group. www.census.gov/eos/ www/naics/faqs/faqs.html#q5. Substantial property damages means property damage, at or outside the stationary source, estimated to be equal to or greater than $1,000,000. In developing its definition, the CSB began with the plain meaning of the statute.15 The CSB determined that the word ‘‘substantial’’ must be accorded some significance. Merriam Webster defines substantial as ‘‘considerable in quantity: significantly great. . . .’’ Clearly, property damage in a minimal amount (i.e., $100) should not be considered ‘‘substantial.’’ This 15 The CSB separately defined the words ‘‘property damage.’’ See discussion above. E:\FR\FM\12DEP1.SGM 12DEP1 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules interpretation is consistent with the available legislative history: The Board is authorized to investigate accidental releases which cause substantial property damage. Substantial damage would include fires, explosions, and other events which cause damages that are very costly to repair or correct, and would not include incidental damage to equipment or controls. khammond on DSKJM1Z7X2PROD with PROPOSALS H.R. Conf. Rep. No. 952, 101st Cong., 2d Sess. 340 (1990), reprinted in 1990 U.S.C.C.A.N. 3867, 3872. At the same time, the CSB determined that a very high dollar threshold, i.e., $10,000,000, would not be consistent with the statutory intent because there are numbers far below that amount that any reasonable person would consider substantial. The difficulty, of course, is where to draw the line between substantial and non-substantial damages. The CSB looked at different sources for guidance.16 In reviewing its own work, the CSB concluded that nearly all of its published investigation reports involved a fatality or serious injury. This is noteworthy only because the CSB has not relied heavily on this factor in selecting accidental releases to investigate in-depth. With a low-dollar, property-damage-only accidental release, the CSB might receive a number of reports that would be unlikely candidates for further CSB investigation. In response to its ANPRM, the CSB received few comments regarding this definition. The American Chemistry Council’s comment suggested that the CSB adopt the DOT regulatory limit of $50,000. CSB–ANPR0901–000115. The CSB also considered API 754 (2016). API 754 suggests recording ‘‘fire or explosion damage greater than or equal to $100,000 of direct cost’’ under its Tier 1 category. Under API 754 Table D.1Tier 1 Process Safety Event Severity Weighting, $100,000 in property damage would score one point. $1,000,000 would score three points, $10,000,000 would score 9 points, and $100,000,000 would score 27 points. The CSB also considered EPA’s ‘‘Summary of Quantified Damages’’ in its proposed amendments to its RMP rule. 81 FR 13637 at 13642–43, March 14, 2016. In looking at EPA RMPcovered facilities over a 10-year period, the EPA estimated an average of 16 CSB understands that FEMA has defined the phrase ‘‘substantial damage’’ as ‘‘damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damage condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.’’ 44 CFR 209.2. However, the CSB determined that this definition was too narrow (property damage limited to structure) and would be less easy to apply than an estimate of monetary damage. VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 $1,354,578 in onsite property damage for each accident. Id. However, this figure is only an average, not a median, and is limited to only a subset of facilities within the scope of the proposed rule. After reviewing the relevant factors, the CSB has proposed $1,000,000 as a threshold for purposes of defining ‘‘substantial property damages.’’ The CSB believes this amount should likely capture accidental releases of significance when there is no other basis for jurisdiction (no deaths or serious injuries). At the same time, this threshold should reduce the number of reports required when there is very little likelihood of serious scrutiny or followup investigation by the CSB because the accidental release did not cause any deaths or serious injuries. The CSB notes, however, that any proposed threshold, even a much lower one, may exclude a small number of very significant accidental releases. This might occur if an accidental release fortuitously did not result in death, serious injury, or substantial property damages, but nevertheless involved the release of a significant amount of an extremely hazardous substance such as hydrofluoric acid. Despite the potential significance of such an accidental release, the CSB is concerned that its statutory language—‘‘death, serious injury, or substantial property damages’’—does not authorize it to require reports when all three consequences are absent. The CSB welcomes comments with respect to the proposed definition of ‘‘substantial property damages.’’ Based on additional comment and information, the CSB may revise the dollar threshold in its definition to a level below $1,000,000. § 1604.3 Reporting an Accidental Release Section 1604.3 establishes what constitutes a reportable accidental release, and a deadline of four hours for reporting such an accidental release directly to the CSB. This section also provides for two alternatives for reporting an accidental release in attempt to avoid duplicative reporting. Avoiding Duplication In its ANPRM, the CSB asked for comments on the following questions: ‘‘Should an initial report be made to the CSB or the National Response Center?’’ The CSB received a number of comments that suggested that reports be submitted to the National Response Center (NRC) in order to avoid duplicative reporting. The CSB has long sought to avoid duplicative reporting PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 67907 requirements by arguing that it had alternative methods for collecting the same information even in the absence of a rule. For this reason, the CSB understands the concerns expressed about additional reporting requirements. In developing this proposed rule, the CSB also considered whether accidents reported to the NRC under other laws could satisfy the CSB’s reporting rule. CSB considered information provided in reports it already receives from the NRC, and reviewed its own incident database to determine how many reports in the database, on average, are based on reports the CSB receives from the NRC. The CSB has determined that there is no simple method to ensure that reports filed with NRC under other laws would satisfy the requirements of a CSB reporting rule. The NRC collects information based on the type of event (i.e., storage tank accidents), not specific laws. Accordingly, there is no certain way to determine whether information reported to the NRC under a certain law will also satisfy CSB requirements. Some laws may seem to overlap with CSB’s requirements but include certain exceptions, i.e., threshold quantities. Under such laws, if the accidental release does not meet the threshold quantity, no report will be made to the NRC. However, in conferring with NRC, CSB was able to determine that reports under 40 CFR 302.6 (although not labeled as such) could be reliably identified via a modified search algorithm. Accordingly, if an owner/ operator knows that it has submitted a report to NRC under 40 CFR 302.6, the owner/operator is not required to file a separate report with the CSB. Rather, the owner/operator is simply required to notify the CSB of the pertinent NRC identification number. The CSB would then use this number to ensure that its search algorithm is capturing all pertinent accidental releases reported to the NRC. This approach is consistent with the CSB’s legislative history, which provides in pertinent part, that the CSB’s ‘‘reporting requirements may be coordinated with other reporting requirements established by the Agency [EPA] (for instance, under section 103 of CERCLA).’’ S. Rep. No. 101–228 at 236 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3620. Moreover, the CSB’s legislative history provides: 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 E:\FR\FM\12DEP1.SGM 12DEP1 67908 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules 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 officers whenever an accidental release requiring an investigation has occurred. Id. Reports to CSB Other than reports submitted to the NRC under 40 CFR 302.6, the proposed rule requires that a report be made to the CSB directly. According to CSB estimates, the proposed rule will require approximately 200 reports per year. However, the total number made to CSB should be fewer because some reports made to NRC under 40 CFR 302.6 will satisfy the CSB’s requirements. In any event, compliance by telephone, or by filing a report directly with the CSB (through completion of a form), should not be a complicated or time-consuming matter. khammond on DSKJM1Z7X2PROD with PROPOSALS Reporting Deadline In its ANPRM, the CSB asked for comments on the following question: ‘‘How soon after an accident should reporting occur?’’ The CSB received a range of comments. These comments suggested a reporting deadline of between two and twenty-four hours. The proposed rule includes a four-hour deadline. In response to the 2009 ANPRM, the American Society of Safety Professionals commented, ‘‘a minimum of three hours is needed for a site’s emergency response priorities and any extenuating circumstances to be handled.’’ The CSB understands that the first several hours following an accidental release require a focus on emergency response actions. Accordingly, the CSB decided against an ‘‘immediate report’’ or one within an hour or two of an accidental release. At the same time, the CSB needs to make deployment decisions as quickly as possible so that investigators can arrive at the accident site within the first 24 hours after the accidental release. CSB has learned from experience that it is often crucial to begin an investigation within this timeframe to examine physical evidence before it is disturbed, and to interview witnesses while the facts and circumstances are still fresh. In order to achieve this goal, the CSB determined that the proposed rule should require notification that would allow the CSB sufficient time to receive a report, analyze preliminary VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 information, make a deployment determination, and deploy investigators to the site of the accidental release within 24 hours. The proposed fourhour deadline should be sufficient for the CSB to achieve its deployment goal while not interfering with immediate emergency response activities. Revisions to Report In response to the 2009 ANPRM, the American Chemistry Council’s comment suggested that the CSB’s reporting rule include a provision for a reporting party to correct unintentionally incorrect information within a reasonable period of time following an accidental release. The CSB agrees with this comment, and the proposed rule includes a provision that allows an owner/operator to file any revision or update to an initial report submitted either to the CSB or to the NRC. The proposed rule is not intended to create a trap for any owner/ operator submitting a report on short notice based on the best available information. § 1604.4 Information Required in an Accidental Release Report Section 1604.4 details the information that must be submitted by an owner/ operator in a report. The information required is consistent with information that the CSB has collected for years from various public sources, and has attempted to verify through public information channels, or through phone calls or email exchanges with the representatives of an owner/operator in the immediate aftermath of an accidental release. This approach has not always been ideal for either the CSB or an owner/operator because CSB must make multiple phone calls or send multiple emails to an owner/operator over a period of hours and days. In this section, the CSB has attempted to balance its need for prompt information with the desirable goal of obtaining as much pertinent information as possible. As reflected in the purpose of the rule (1604.1), the CSB has determined that the prompt reporting of basic information is its highest priority. While additional, detailed information is desirable, the CSB concluded that it would need to extend the reporting deadline if it added additional information requirements beyond those set out in the proposed rule. Some additional requirements would arguably require additional hours, or even days, for compliance. At some point, the primary purpose of the rule—prompt notification of an accidental release— would be undermined by the quest for more information. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 The CSB has also considered the need of an owner/operator to focus on numerous matters in the immediate aftermath of accidental release. Accordingly, the proposed accidental release reports will require only information that is already known or should be available to an owner/ operator soon after an accidental release. The required information is also limited in scope to critical information required for the CSB to make informed decisions about its jurisdiction, interagency coordination, and deployment decision-making. For example, paragraphs (a)–(e) require only minimal contact information and a basic description of the accidental release. Paragraph (g) requests the relevant CAS Registry Number associated with the chemical(s) involved in the accidental release.17 The CAS information will help the CSB in making informed decisions about deploying investigators and initiating an investigation. Paragraphs (h), (i), (j), and (l)(1)–(3) include an important qualifier, ‘‘if known.’’ This qualifier recognizes that some or all of this information may not be known within four hours of an accidental release. Paragraph (k) asks the owner/operator to provide an estimate of ‘‘property damage at or outside the stationary source.’’ The owner is required to make an estimate only, not report an exact figure, or to state whether or not the amount of property damage meets or exceeds the definition for ‘‘substantial property damages.’’ There will be certain instances when an owner or operator may need to assess whether a report is required at all by reference to the definition of ‘‘substantial property damages.’’ However, for purposes of including a number in the report, the owner/operator may simply include the best available estimate, regardless of whether the amount falls above or below the threshold for reporting. The CSB also anticipates that the number of reports required to be submitted solely because of the ‘‘substantial property damages’’ criterion should be rather limited. § 1604.5 Failure to Report an Accidental Release Paragraphs (a) and (b) of § 1604.5 implement the enforcement provisions authorized by 42 U.S.C. 7412(r)(6)(O). 17 A CAS Registry Number is assigned by an organization called CAS (a division of the American Chemical Society). See https://www.cas.org/ support/documentation/chemical-substances/ faqs#2. It is a unique numberic identifier that is well known to the companies who produce, handle, or ship chemicals and will require minimal effort to include in a report. E:\FR\FM\12DEP1.SGM 12DEP1 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS For one year following the effective date of the rule, the CSB will refrain from referring violations for enforcement, unless there is a knowing failure to report. This policy is required to allow adequate time for compliance education. The CSB is confident that most significant matters will come to its attention through its ongoing surveillance of accident activity. For one year following the effective date of the rule, the CSB will contact any owner/operator who it believes should have filed a report. If a report is filed immediately following notification, the CSB will not refer the failure to report under § 1604.5. A significant number of accidental releases are concentrated within certain industries. The CSB anticipates that firms within these sectors will be the focus of initial compliance education outreach. The remainder of accidental releases occur in a range of other sectors. The CSB anticipates that additional time may be required to adequately educate all sectors. If appropriate, the CSB will extend the grace period for such sectors. Similarly, accidents involving small facilities with few employees require special consideration. In some cases, the owner/operator may not be able to report an accidental release within four hours, especially if ongoing response activities require attention. The CSB has encountered such cases in the past and has worked with owners and operators to factor in such exceptional circumstances. The grace period described above will resolve such issues in a reasonable fashion for at least one year following the date of adoption. The CSB will consider a longer-term approach to these unique situations and propose appropriate compliance guidance and/ or amendments to any final rule before the grace period has expired. The CSB intends to issue compliance guidance periodically, and welcomes comments that address unusual circumstances. For example, the CSB is interested in comments on what exceptions should be made for owner/ operators with small operations and few employees. § 1604.6 Public Availability of Accidental Release Records This section is included to clarify that the procedure for seeking records obtained pursuant to the rule is governed by the Freedom of Information Act, 5 U.S.C. 552, (FOIA), the CSB’s procedural regulations for disclosure of records under the FOIA, 40 CFR part VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 1601, and any other pertinent Federal disclosure laws. Neither 42 U.S.C. 7612(r)(6)(C)(iii) nor 42 U.S.C. 7612(r)(6)(Q),18 alone or in combination, authorize the immediate disclosure of accidental release record information apart from the requirements of FOIA. Importantly, neither of those two provisions, alone or in combination, authorize the immediate disclosure of accidental release report information in order to support emergency response and public safety operations. Such a reading would potentially conflict with the implementation of other existing public information and safety laws, such as EPCRA (see section 303), which are directly focused on emergency response, the protection of public health and safety, and the public release of information to mitigate risks to the public. List of Subjects in 40 CFR Part 1604 Hazardous substances, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Chemical Safety and Hazard Investigation Board proposes to add 40 CFR part 1604 to read as follows: ■ PART 1604—REPORTING OF ACCIDENTAL RELEASES Sec. 1604.1 Purpose. 1604.2 Definitions. 1604.3 Reporting an accidental release. 1604.4 Information required in an accidental release report submitted to the CSB. 1604.5 Failure to report an accidental release. 1604.6 Public availability of accidental release records. Authority: 42 U.S.C. 7412(r)(6)(C)(iii); 42 U.S.C. 7412(r)(6)(N) § 1604.1 Purpose. The enabling legislation of the Chemical Safety and Hazard Investigation Board (CSB) provides that the CSB shall establish requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigative jurisdiction. 42 U.S.C. 7412(r)(6)(C)(iii). This part establishes the rule required by the enabling legislation. The purpose of this part is to require prompt notification of any accidental release within the CSB’s investigatory jurisdiction. § 1604.2 Definitions. Accidental release means an unanticipated emission of a regulated 18 CSB does not interpret subsection Q as in any manner amending the FOIA. PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 67909 substance or other extremely hazardous substance into the ambient air from a stationary source. Ambient air means any portion of the atmosphere inside or outside a stationary source. Extremely hazardous substance 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 the Environmental Protection Agency (EPA) Administrator under 42 U.S.C. 7412(r)(5). General public means any person except for: (1) Workers, employees or contractors working for (or on behalf of) the owner or operator of a stationary source from which an accidental release has occurred; and (2) Any person acting in the capacity of an emergency responder to an accidental release from a stationary source. Owner or operator means any person or entity who owns, leases, operates, controls, or supervises a stationary source. Property damage means damage to or the destruction of tangible public or private property, including loss of use of that property. Regulated substance means any substance listed pursuant to the authority of 42 U.S.C. 7412(r)(3). Serious injury means any injury if it results in any of the following: (1) Death; one or more days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; or (2) 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, medical treatment beyond first aid, or loss of consciousness. 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. Substantial property damages means estimated property damage at or outside the stationary source equal to or greater than $1,000,000. § 1604.3 Reporting an accidental release. (a) The owner or operator of a stationary source must report in accordance with paragraph (b) or (c) of E:\FR\FM\12DEP1.SGM 12DEP1 67910 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS this section, any accidental release resulting in a fatality, serious injury or substantial property damages. (b) If the owner or operator has submitted a report to the National Response Center (NRC) pursuant to 40 CFR 302.6, the CSB reporting requirement may be satisfied by submitting the NRC identification number to the CSB immediately following submission of the report to the NRC. (c) If the owner or operator has not submitted a report to the NRC and notified the CSB under paragraph (b) of this section, the owner/operator must submit a report directly to the CSB within four hours of the accidental release and must include the required information listed in § 1604.4. A report may be made by email to: report@ csb.gov, or by telephone at 202–261– 7600. (d) Notwithstanding paragraphs (a) through (c) of this section, an owner or operator of a stationary source, without penalty, may revise and/or update information reported to the NRC or CSB by sending a notification with revisions by email to: report@csb.gov, or by correspondence to: Chemical Safety Board (CSB), 1750 Pennsylvania Ave. NW, Suite 910, Washington, DC 20006, within 30 days following the submission of a report to the NRC or CSB. If applicable, the notification must reference the original NRC identification number. No update or revisions should be sent to the NRC. VerDate Sep<11>2014 16:25 Dec 11, 2019 Jkt 250001 § 1604.4 Information required in an accidental release report submitted to the CSB. The report required under § 1604.3(c) must include the following information regarding an accidental release as applicable: (a) The name of, and contact information for, the owner/operator; (b) The name of, and contact information for, the person making the report; (c) The location information and facility identifier; (d) The approximate time of the accidental release; (e) A brief description of the accidental release; (f) An indication whether one or more of the following has occurred: (1) Fire; (2) Explosion; (3) Death; (4) Serious injury; or (5) Property damage; (g) The name of the material(s) involved in the accidental release, the Chemical Abstract Service (CAS) number(s), or other appropriate identifiers; (h) If known, the amount of the release; (i) If known, the number of fatalities; (j) If known, the number of serious injuries; (k) Estimated property damage at or outside the stationary source; (l) Whether the accidental release has resulted in an evacuation order impacting members of the general public and others, and, if known: (1) The number of people evacuated; PO 00000 Frm 00031 Fmt 4702 Sfmt 9990 (2) Approximate radius of the evacuation zone; and (3) The type of individuals subject to the evacuation order (i.e., employees, members of the general public, or both). § 1604.5 release. Failure to report an accidental (a) It is unlawful for any person to fail to make reports required under this part, and suspected violations of this part will be forwarded to the Administrator of the EPA for appropriate enforcement action. (b) Violation of this part is subject to enforcement pursuant to the authorities of 42 U.S.C. 7413 and 42 U.S.C. 7414, which may include— (1) Administrative penalties; (2) Civil action; or (3) Criminal action. § 1604.6 Public availability of accidental release records. Accidental release records collected by the CSB under this rule may be obtained by making a request in accordance with 40 CFR part 1601, the CSB’s procedures for the disclosure of records under the Freedom of Information Act. The CSB will process, and if appropriate, disclose such records, only in accordance with 40 CFR part 1601 and relevant Federal information disclosure laws. Dated: December 4, 2019. Thomas A. Goonan, General Counsel, Chemical Safety and Hazard Investigation Board. [FR Doc. 2019–26495 Filed 12–11–19; 8:45 am] BILLING CODE 6350–01–P E:\FR\FM\12DEP1.SGM 12DEP1

Agencies

[Federal Register Volume 84, Number 239 (Thursday, December 12, 2019)]
[Proposed Rules]
[Pages 67899-67910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26495]


=======================================================================
-----------------------------------------------------------------------

CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1604

[Docket Number: CSB-2019-0004]
RIN 3301-AA00


Accidental Release Reporting

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This proposed rule describes when an owner or operator is 
required to file a report of an accidental release and the required 
content of such a report. The purpose of the proposed rule is to ensure 
that the CSB receives rapid, accurate reports of any accidental release 
that meets established statutory criteria.

DATES: Comments must be submitted by January 13, 2020.

ADDRESSES: You may send comments, identified by docket number and/or 
RIN number, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include docket number and/or 
RIN number, 3301-AA00, in the subject line of the message.
     Mail: Chemical Safety and Hazard Investigation Board, 1750 
Pennsylvania Ave. NW, Suite 910, Washington, DC 20006, ATTN: Reporting 
Rule Comment.
    Instructions: All submissions must include the agency name and 
docket number, CSB-2019-0004, or Regulatory Information Number, 3301-
AA00, for this rulemaking. For detailed instructions on sending 
comments and additional information on the rulemaking process, see the 
``Public Participation and Request for Comments'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rule, call or email Mr. Thomas Goonan, General Counsel of the 
Chemical Safety and Hazard Investigation Board, by telephone at 202-
261-7600, or by email at [email protected].

SUPPLEMENTARY INFORMATION: The enabling statute of the Chemical Safety 
and Hazard Investigation Board (CSB) provides that the CSB ``shall 
establish by regulation requirements binding on persons for reporting 
accidental releases into the ambient air subject to the Board's 
investigative jurisdiction.'' 42 U.S.C. 7412(r)(6)(C)(iii). The 
proposed rule is intended to satisfy this statutory requirement.

Background

    The CSB was established by the Clean Air Act Amendments of 1990. 
The statute directs the CSB, among other things, to investigate and 
report on any accidental release ``resulting in a fatality, serious 
injury or substantial property damages.'' 42 U.S.C. 7412(r)(6)(C)(i) 
and (ii). The statute also requires the CSB to issue a rule governing 
the reporting of accidental releases to the CSB. 42 U.S.C. 
7412(r)(6)(C)(iii).
    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.
    In 2004, the DHS 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.) In 2008, the Government Accountability Office (GAO) also 
recommended that the CSB fulfill its statutory obligation by issuing a 
reporting rule. (U.S. Government Accountability Office, ``Chemical 
Safety Board: Improvements in Management

[[Page 67900]]

and Oversight Are Needed,'' GAO-08-864R, Aug. 22, 2008, at 11.)
    On June 25, 2009, the CSB submitted an Advanced Notice of Proposed 
Rulemaking (ANPRM) entitled ``Chemical Release Reporting,'' at 74 FR 
30259-30263, June 25, 2009. The ANPRM outlined four potential 
approaches to accidental release reporting and requested additional 
information for developing a proposed rule. Specifically, the CSB 
sought comments in response to several specific questions, including 
but not limited to the following:
     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 
requirement?
     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?

74 FR 30262.

    In response to the ANPRM, the CSB received 27 comments from a 
variety of interested parties. These comments are included as part of 
the docket for this rulemaking and labeled for reference as CSB-
ANPR0901-000001 to CSB-ANPR0901-000133.
    On February 4, 2019, a U.S. District Court judge ordered the CSB to 
issue a rule requiring the reporting of accidental chemical releases to 
the CSB. See 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). The court directed the CSB to promulgate a final rule within 12 
months of the date of the court's final order.

Public Participation and Request for Comments

Submitting Comments

    If you submit a comment, please: Include the docket number for this 
rulemaking (USCSB-2019-0004) and/or the RIN number, 3301-AA00; indicate 
the specific section of this document to which each comment applies, 
and provide a reason for each suggestion or recommendation. We 
recommend that you include your name and either a mailing address, an 
email address, or a phone number in the body of your document so that 
we can contact you if we have questions regarding your submission.

Online

    To submit your comments online, go to http://www.regulations.gov 
and find the CSB's proposed rule. You can find a rule on 
regulations.gov by entering a keyword, title, RIN number, or document 
ID in the search area on the homepage and click the ``Search'' button. 
On the ``Search Results'' page, you can narrow your results with the 
filters on the screen. Once you find the proposed rule, click its title 
to view the ``Document Details'' page.
    Once you locate a document that is open for comment, click the 
``Comment Now!'' button on either the Search Results or the Document 
Details page. This will display the Comment Form. You can enter your 
comment on the form, and attach files (up to 10 MB each). Be sure to 
complete all required fields. Please note that some information entered 
on the web form may be viewable publicly. These fields are identified 
by the globe icon. Once you reach the ``Your Preview'' screen, the 
information that will be viewable publicly is displayed directly on the 
form under the section titled: ``This information will appear on 
Regulations.gov.'' To complete your comment, you must first agree to 
the disclaimer and check the box. This will enable the ``Submit 
Comment'' button.
    Upon completion, you will receive a Comment Tracking Number for 
your comment. To learn more about comment submission, visit the 
``Submit a Comment'' section of the ``How to Use Regulations.gov'' 
pages.

Mail or Hand Delivery

    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know if your mail reached the CSB, please enclose a stamped, 
self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based upon your 
comments.

Viewing Comments and Documents

    To view comments, as well as documents described in this preamble 
as being available in the docket, go to http://www.regulations.gov. If 
you do not have access to the internet, you may view the docket online 
by visiting the Chemical Safety and Hazard Investigation Board, 1750 
Pennsylvania Ave. NW, Suite 910, Washington, DC 20006, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. Please call 
202-261-7600 in advance to schedule an appointment.

Regulatory Requirements

Unfunded Mandates Reform Act (2 U.S.C. Ch. 25)

    The Act does not apply to independent regulatory agencies, 2 U.S.C. 
658(1). In any event, the proposed rule does not contain a Federal 
mandate that may result in the expenditure by state, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year. Nor will it have a significant or 
unique effect on small governments.

Regulatory Flexibility Act (5 U.S.C. Ch. 6)

    The Regulatory Flexibility Act (RFA) requires Federal agencies to 
assess the impact of a proposed rule on small entities and to consider 
less burdensome alternatives for rules that are expected to have a 
significant economic impact on a substantial number of small entities. 
5 U.S.C. 603. However, an agency is not required to prepare such an 
analysis for a proposed rule if the Agency head certifies that the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities. 5 U.S.C. 605(b). For the reasons 
discussed below, the CSB has certified to the SBA's Chief Counsel for 
Advocacy of the Small Business Administration (``SBA'') that the 
proposed rule, if promulgated, will not have a significant economic 
impact on a substantial number of small businesses, small governmental 
jurisdictions, or small organizations.

Summary of Proposal

    As authorized by 42 U.S.C. 7412(r)(6)(C)(iii), the CSB has proposed 
a rule to require an owner or operator of a stationary source to submit 
an accidental release report to the CSB. The proposed rule describes 
when an owner or operator is required to file a report of an accidental 
release, and the required content of such a report. The purpose of the 
proposed rule is to ensure that the CSB receives rapid, accurate 
reports of any accidental release that meets established statutory 
criteria.
    The proposed accidental release reports will require only 
information that is already known or should be available to an owner/
operator soon after an accidental release. The required information is 
also limited in scope to critical information required for the CSB to 
make informed decisions about its

[[Page 67901]]

jurisdiction, interagency coordination, and deployment decision-making. 
For example, paragraphs (a)-(e) require only minimal contact 
information and a basic description of the accidental release. 
Paragraph (g) requests the relevant CAS Registry Number associated with 
the chemical(s) involved in the accidental release. Paragraphs (h), 
(i), (j), and (l)(1)-(3) include an important qualifier, ``if known.'' 
This qualifier recognizes that some or all of this information may not 
be known within four hours of an accidental release.

Economic Impact

Small Entity Impact

    Although the CSB concluded that the proposed rule will not have a 
significant economic impact on businesses, regardless of size, the CSB 
nevertheless estimated how many small businesses would be impacted by 
the proposed rule by using the following methodology. In order to 
estimate the percentage of reports that would likely be filed by small 
businesses each year, the CSB reviewed the 1,923 accidental releases to 
determine how many releases could be matched to a NAICS code and how 
many distinct NAICS codes were represented. Of the 1,923 incidents, 
approximately 85 percent (1,625) had a NAICS code identifier. The 1,625 
events were distributed among 441 distinct, six-digit NAICS codes.\1\
---------------------------------------------------------------------------

    \1\ The CSB determined that a total of 253 NAICS codes appeared 
only one time over 10 years. Thus, 57% (253 out of 441) of the codes 
involved only one incident.
---------------------------------------------------------------------------

    Because of the distribution of accidental releases among so many 
different NAICS codes, the CSB focused its analysis on the business 
types most likely to be impacted by the proposed rule: Firms with NAICS 
codes that appeared most often in the dataset. The CSB sorted the 1,625 
releases with a NAICS code into three segments: (1) NAICS codes which 
appeared at least 10 times in the dataset; (2) NAICS codes which 
appeared between 5-9 times, and (3) NAICS codes that appeared less than 
5 times. The CSB concluded that a total of 19 NAICS codes appeared 10 
or more times and represented 423 separate incidents, or 26% of the 
1,923 events recorded in the database.
    The 19 NAICS codes with at least 10 events over the pertinent time 
period are listed in Table 2 below. The CSB used these 19 codes as a 
sample to assess impact on small businesses. The CSB assumed that 
releases fell evenly across all businesses within each NAICS code. 
Based on the total number of reports for each code (column 2), the CSB 
calculated the percentage of accidental releases occurring within each 
of the 19 most frequent NAICS codes in relation to the total number of 
1,923 incidents in the database. This information is summarized in 
Table 2, column 3.
    The CSB used the U.S. Small Business Administration Table of Small 
Business Size Standards to determine the pertinent small business 
standard for each of the 19 NAICS categories.\2\ Depending on the NAICS 
code, a firm's status as a small business is determined by the number 
of employees or by annual revenue.\3\ The pertinent measure for each 
NAICS code, employment or revenue, is set out in Table 2 in the fourth 
and fifth columns.
---------------------------------------------------------------------------

    \2\ U.S. Small Business Administration, Table of Small Business 
Size Standards Matched to North American Industry Classification 
System Codes (effective August 19, 2019), available at https://www.sba.gov/document/support--table-size-standards.
    \3\ Id. The SBA does set out some alternative measures for 
certain codes, but the CSB review used only standard measures.
---------------------------------------------------------------------------

    The CSB determined the total number of firms in each category, and 
the total number of small firms in each category, by consulting the 
most recent census tables summarizing data for U.S. businesses. See 
Table 1, columns 6 and 7. The most recent data for businesses measured 
by employment is from 2016.\4\ The most recent data for businesses 
measured in terms of revenue is from 2012.\5\ The percentage of small 
businesses within each NAICS code is listed in the last column of Table 
2.
---------------------------------------------------------------------------

    \4\ Number of Firms, Number of Establishments, Employment, and 
Annual Payroll by Enterprise Employment Size for the United States, 
All Industries: 2016 (released 12/18/2018), available at https://www.census.gov/data/tables/2016/econ/susb/2016-susb-annual.html.
    \5\ Number of Firms, Number of Establishments, Employment, 
Annual Payroll, and Estimated Receipts by Enterprise Receipt Sizes 
for the United States, All Industries: 2012 (released June, 22, 
2015), available at https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.

                Table 1--Releases by NAICS Categories in Terms of Frequency of Releases 2009-2019
----------------------------------------------------------------------------------------------------------------
                                       Number        Size         Size
                                     (percent)    standards    standards
                   NAICS industry        of      in millions   in number
   NAICS code           name         incidents    of dollars       of      Total firms     Small       % Small
                                     in sample    of revenue   employees
                                     (N=1,923)      (2012)       (2016)
----------------------------------------------------------------------------------------------------------------
324110..........  Petroleum           54 (2.8%)          N/A        1,500           96         * 51           53
                   Refineries.
213112..........  Support             48 (2.5%)          $42          N/A        8,877        8,595           98
                   Activities for
                   Oil and Gas
                   Operations.
211111..........  Crude Petroleum     44 (2.3%)          N/A        1,250        5,658      * 5,558           98
                   and Natural Gas
                   Extraction.
424690..........  Other Chemical      28 (1.5%)          N/A          150        5,912        5,410           92
                   and Allied
                   Products
                   Merchant
                   Wholesalers.
213111..........  Drilling oil and    27 (1.4%)          N/A        1,000        1,795      * 1,754           98
                   gas.
325199..........  All Other Basic    24 (1.25%)          N/A        1,250          584        * 485           83
                   Organic
                   Chemical
                   Manufacturing.
325998..........  All Other          24 (1.25%)          N/A          500        1,005          924           92
                   Miscellaneous
                   Chemical
                   Product and
                   Preparation
                   Manufacturing.
325211..........  Plastics           20 (1.04%)          N/A        1,250          855        * 736           86
                   Material and
                   Resin
                   Manufacturing.
423930..........  Recyclable         20 (1.04%)          N/A          100        6,776        6,569           97
                   Material
                   Merchant
                   Wholesalers.
331110..........  Iron and Steel     22 (1.14%)          N/A        1,500          442        * 372           84
                   Mills.
221310..........  Water Supply and    18 (.94%)           30          N/A        3,293        3,243           98
                   Irrigation
                   Systems.
424720..........  Petroleum and       17 (.88%)          N/A          200        1,690        1,490           88
                   Petroleum
                   Products
                   Merchant
                   Wholesalers.
238910..........  Site Preparation    15 (.78%)           17          N/A       33,806       33,324           98
                   Contractors.
311615..........  Poultry             13 (.68%)          N/A        1,250          317        * 258           81
                   Processing.
325180..........  All Other Basic      16 (.8%)          N/A        1,000          365          279           76
                   Inorganic.
221320..........  Sewage Treatment    12 (.62%)           22          N/A          398          370           93
                   Facilities.
237120..........  Oil and Gas         12 (.62%)           40          N/A        1,779        1,592           89
                   Pipeline and
                   Related
                   Structures
                   Construction.
811111..........  General             11 (.57%)            8          N/A       76,336       75,639           99
                   Automotive
                   Repair.
713940..........  Fitness and         10 (.52%)            8          N/A       24,775       24,348           98
                   Recreational
                   Sports Centers.
                        Total         435 (23%)
----------------------------------------------------------------------------------------------------------------
Note 1: An asterisk appears next to numbers in the table that are estimates based on a lack of sufficiently
  specific census data. For example, the pertinent employment size standard for iron and steel mills set by the
  SBA is 1,500 employees. However, census data does not provide specific information on the number of firms with
  more than 1,500 employees. Instead, the highest category is 500 and more employees. Thus, for purposes of
  analysis, the counted firms with less than 500 employees as small firms.


[[Page 67902]]

* * * * *
    The CSB then multiplied the percentage of small business within 
each category by the total number of reported releases in that category 
over the 10-year period. Table 2, column 7. This number was then 
divided by 10 to obtain the number of reports anticipated each year on 
average from small businesses within each NAICS code.\6\ Table 2, 
column 8. Because the number of small business reports expected 
annually is low, (covering a range from .91 to 4.7) for the sectors 
with the most identifiable releases, the CSB reasons that the impact in 
sectors with only a few releases over 10 years would be 
inconsequential.
---------------------------------------------------------------------------

    \6\ The database covered approximately 10.5 years, but the CSB 
used 10 in its calculation for simplicity.

                                                    Table 2--Expected Annual Reports Burden by Sector
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Expected--
                                                                           Total                                 Expected   reports from     Expected
            NAICS code                      NAICS industry name          businesses     Small       % Small      reports        small         annual
                                                                            \7\                                 2020-2030   businesses--  reports--small
                                                                                                                              2020-2030      business
--------------------------------------------------------------------------------------------------------------------------------------------------------
213112............................  Support Activities for Oil and Gas        8,727        8,596          .98           48            47            4.7
                                     Operations.
211111............................  Crude Petroleum and Natural Gas           5,658        5,558          .98           44            43           4.32
                                     Extraction.
324110............................  Petroleum Refineries..............           96           51          .53           54         28.29           2.87
213111............................  Drilling Oil and Gas Operations...        1,795        1,754          .98           27            27           2.64
325998............................  Miscellaneous Chemical Product &          1,005          924          .92           24            22            2.2
                                     Preparation Manufacturing.
423930............................  Recyclable Material Merchant              6,776        6,569          .97           20          19.4           1.94
                                     Wholesalers.
325199............................  All Other Basic Organic Chemical            584          485          .83           24            20           1.99
                                     Manufacturing.
331110............................  Iron and Steel Mills..............          442          372          .84           22         18.48           1.85
325211............................  Plastics Material and Resin                 855          736          .86           20          17.2            1.7
                                     Manufacturing.
221310............................  Water Supply and Irrigation               3,293        3,243          .98           18          17.6           1.76
                                     Systems.
424690............................  Other Chemical and Allied Products        5,912        5,410          .92           17         15.64           1.56
                                     Merchant Wholesalers.
424720............................  Petro. and Petro. Products                1,690        1,487          .88           17            15            1.5
                                     Merchant Wholesalers (except Bulk
                                     Stations and Terminals).
238910............................  Site Preparation Contractors......       34,153       32,997          .98           15          14.7           1.47
325180............................  All Other Basic Inorganic Chemical          365          279          .76           16         12.16           1.22
                                     Manufacturing.
221320............................  Sewage Treatment Facilities.......          398          370          .93           12          11.2           1.12
811111............................  General Automotive Repair.........       76,336       75,639          .99           11         10.89           1.08
237120............................  Oil and Gas Pipeline and Related          1,779        1,592          .89           12            11            1.1
                                     Structures Construction.
311615............................  Poultry Processing................          317          258          .81           13          10.5            1.0
713940............................  Fitness and Recreational Sports          24,775       24,348          .98           10            10            .98
                                     Centers.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Estimated Reports per Year

    The CSB identified 1,923 chemical accidents in its database that 
occurred between January 1, 2009, and July 15, 2019. Each of these 
incidents involved either a fatality or hospitalization. A copy of the 
CSB's database information regarding the 1,923 accidental releases is 
included in the docket for reference.\8\ The total number of annual 
incidents ranged from a low of 113 in 2017 to a high of 291 in 2012. 
Over 10.5 years, the average annual number of accidents was 
approximately 183. The median number of accidents per year was 169.
---------------------------------------------------------------------------

    \7\ In order to calculate the number of small businesses, the 
CSB had to use two different census tables. If the size standard was 
based on revenue, the CSB relied on a 2012 table. If the size 
standard was based on employment, the CSB used the 2016 table.
    \8\ Because of the CSB's limited resources and lack of available 
information, there are certain limitations to the information 
contained in the CSB database. The database was not designed to 
comprehensively collect statistically valid data concerning all 
accidental releases. Much of the information in the database comes 
from the first day of incident media reports. The CSB could only 
follow up on a limited number of events per year to verify 
information contained in the media reports.
---------------------------------------------------------------------------

    Because the database tracked hospitalizations (as opposed to 
serious injuries as defined in the proposed rule), it is possible that 
certain incidents within the CSB's investigatory jurisdiction are not 
included in the database. In addition, it is possible that the CSB's 
data does not include a small number of accidental releases that 
resulted in a fatality. A release resulting in a fatality might have 
been missed if it was not reported to NRC pursuant to other law or not 
reported in the media.\9\ For these reasons, the CSB recognizes that 
the annual average of 183 incidents may undercount a certain number of 
accidental releases which meet the CSB's statutory criteria. On the 
other hand, the past annual average does not take into account that a 
certain number of full reports will not be required under the proposed 
rule if a party has already reported the release to the NRC under 
CERCLA. In light of all factors, the CSB increased its annual estimate 
of reports from the historic average of 183 to 200.
---------------------------------------------------------------------------

    \9\ During the relevant time period, the CSB relied on NRC 
reports and media surveillance search engines to identify releases 
of interest.
---------------------------------------------------------------------------

Burden Estimate-Time

    The CSB considered two areas of burden: Familiarization costs and 
reporting costs. The CSB estimated that it would take approximately 45 
minutes for each firm to learn about the rule and when to report. The 
CSB considers this a one-time cost, which will be borne by all entities 
which might experience an accidental release, whether or not such a 
release occurs. The CSB also estimated that it would take each firm 
approximately 15 minutes to submit a report to the CSB following an 
accidental release.
    The CSB reviewed forms the NRC uses to guide its operators in 
taking release information with questions similar to those included in 
the CSB's proposed form. The main difference is that the proposed CSB 
form had fewer data queries. The CSB asked NRC how long it typically 
took its operators to collect information from a caller reporting an 
accidental release. NRC does not break that information down based on 
the type of incident involved but had other relevant, informal 
information to share. NRC informed the CSB that it receives 
approximately 30,000 telephone reports each year, and the average time 
required for each operator to complete the call was approximately 8 
minutes. The CSB conducted two simulated accidental release phone calls 
in which the caller was asked for the same information as is required 
under the proposed rule. These simulated calls also took approximately 
8 minutes. Thus, the available information indicated that a

[[Page 67903]]

phone submission would take approximately 8 minutes. In its judgment, 
the CSB estimated that it would take 2-3 additional minutes to complete 
a screen-fillable .pdf form and email it to the CSB. To allow for some 
margin of error in its analysis, the CSB estimates that it will take 
approximately 15 minutes to submit a report, either by telephone or by 
emailing a form.

Burden Estimate-Cost

    The CSB then estimated an hourly labor cost to translate the time 
requirement into a cost figure. In order to determine an appropriate 
hourly rate, the CSB identified six relevant occupation codes, the 
annual mean wage, and the mean hourly wage for each, based on the 
Bureau of Labor Statistics' May 2018 National Occupational Employment 
and Wage Estimates United States.\10\ The CSB next combined the average 
hourly rate for each of the six classifications and divided that total 
by six. This calculation produced an average hourly rate of $37.20. 
This information is summarized in Table 3 below.
---------------------------------------------------------------------------

    \10\ https://www.bls.gov/oes/current/oes_nat.htm
---------------------------------------------------------------------------

    The CSB then multiplied the average hourly wage ($37.20) by the 
total time requirement for the first year of one (1) hour (45 minutes 
to learn about the rule and 15 minutes to submit a report). This 
calculation resulted in an estimated per-business compliance cost 
during the first year of $37.20. However, not all businesses will need 
to file a report during the first year or each year thereafter. 
Further, some businesses who need to file a report each year will not 
have to submit a full report to the CSB if the firm has already 
reported the event to the NRC under CERCLA.
    Based on the minimal per business cost, the CSB has concluded that 
the proposed rule will not have a significant economic impact on any 
business, regardless of size.

                                 Table 3--Occupational Classifications and Wages
----------------------------------------------------------------------------------------------------------------
                                                                                    Mean annual
           Occupational code                        Occupation title                   wage         Mean hourly
----------------------------------------------------------------------------------------------------------------
13-1041...............................  Compliance Officer......................         $72,520          $34.86
17-2081...............................  Environmental Engineers.................          92,640           44.54
17-2110...............................  Industrial Engineers \11\...............          91,800           44.14
17-1111...............................  Health and Safety Engineers \12\........          93,630           45.01
17-3025...............................  Environmental Engineering Technicians...          54,800           26.34
17-3026...............................  Industrial Engineering Technicians......          58,860           28.30
                                        Composite Average Hourly................  ..............           37.20
----------------------------------------------------------------------------------------------------------------

    Given the minimal burden of reporting imposed under the proposed 
rule, and the low number of reports expected from small businesses on 
an annual basis, the CSB concluded that the proposed rule will not have 
a significant economic impact on a substantial number of small 
entities. The CSB seeks comments on this certification, under the RFA. 
The CSB also requests comments on the threshold economic analysis, 
presented above, and its underlying assumptions.
---------------------------------------------------------------------------

    \11\ Includes health and safety engineers.
    \12\ Except Mining Safety Engineers and Inspectors.
---------------------------------------------------------------------------

* * * * *

Paperwork Reduction Act (44 U.S.C. Ch. 35)

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) 
provides that an agency generally cannot conduct or sponsor a 
collection of information, and no person is required to respond to, nor 
be subject to a penalty for, failure to comply with a collection of 
information unless that collection has obtained Office of Management 
and Budget (OMB) approval and displays a currently valid OMB Control 
Number.
    As of the date of the publication of this proposed rule, the CSB 
has made a PRA submission to OMB in accordance with 5 CFR 1320.5(a)(3) 
and immediately below has published the following notice required under 
5 CFR 1320.5(a)(1)(iv):
    Type of Information Collection: New Collection.
    Title of the Collection: Accidental release report.
    Summary of the Collection: The proposed collection requires an 
owner/operator of a stationary source to report information concerning 
an accidental release. Specific detail is provided in the proposed 
information collection request.
    Need for the information and proposed use of the information: The 
CSB is required by law to issue an accidental release reporting rule. 
The CSB intends to use the information to learn of any accidental 
release within its jurisdiction and to plan how to respond to that 
particular accidental release.
    A description of the likely respondents: The vast majority of 
respondents will be private sector businesses involved in the 
production, storage or handling of regulated substances or extremely 
hazardous substances.
    Estimated number of likely respondents per year: 200.
    Proposed frequency of response to the collection of information: 
Most respondents will only submit a response if an accidental release 
within the scope of the rule occurs during a given year. For the vast 
majority of potential respondents, the frequency of responses will 
likely be ``none'' in a given year.
    An estimate of the total annual reporting and recordkeeping burden:
    Reporting: The CSB estimates that approximately 200 reports will be 
submitted each year, and that each report will take approximately 15 
minutes for each respondent to complete and submit to the CSB. Thus, 
the CSB estimates the total annual labor burden each year for reporting 
parties will be approximately 50 hours.\13\
---------------------------------------------------------------------------

    \13\ This estimate does not include first year familiarization 
costs for potentially impacted firms to learn about the rule and its 
requirements. However, the first year familiarization cost 
calculation is addressed in the regulatory flexibility section of 
the preamble.
---------------------------------------------------------------------------

    The CSB then estimated an hourly labor cost to translate the time 
requirement into an annual cost figure. In order to determine an 
appropriate hourly rate, the CSB identified six relevant occupational 
classifications, and the annual salary for each position, based on the 
Bureau of Labor Statistics' May 2018 National Occupational Employment 
and Wage Estimates. A full discussion of this calculation is included 
in the discussion above concerning the Regulatory Flexibility Act. 
Based on its analysis, the CSB estimated an hourly rate of $37.20 was 
appropriate for purposes of estimated labor cost. The CSB then 
multiplied the average hourly wage rate of $37.20 by the total annual 
time estimate of 50

[[Page 67904]]

hours to determine its total annual cost estimate of $1,860.00.
    Recordkeeping: There is no recordkeeping requirement.
    Notice that comments may be submitted to OMB: The collection of 
information proposed in this rule has been submitted to OMB for review 
under section 3507(d) of the Act. See 5 CFR 1320.8(d)(3). You may 
submit comments to OMB's Office of Information and Regulatory Affairs 
via email to [email protected], Attention: Desk Officer for 
the CSB. Because OMB is required to make a decision concerning the 
proposed information collection request between 30 and 60 days 
following receipt, OMB must receive comments no later than January 13, 
2020.
    Any interested person may also submit comments to the CSB regarding 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden directly. Whether submitted to 
OMB or the CSB, such comments should:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Address the potential to enhance the quality, utility, and 
clarity of the information to be collected; and
     Discuss options to minimize the burden of the collection 
of information on those who are to respond, including through the use 
of appropriate automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses.

Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
Ch. 6)

    The proposed rule is not a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996 (as 
amended), 5 U.S.C. 804. This rule will not result in an annual effect 
on the economy of $100,000,000 or more; a major increase in costs or 
prices; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises in 
domestic and export markets.

National Environmental Policy Act of 1969 (5 U.S.C. 804)

    The proposed rule will not have significant effect on the human 
environment. Accordingly, this rule is categorically excluded from 
environmental analysis under 43 CFR 46.210(i).

E-Government Act of 2002 (44 U.S.C. 3504)

    Section 206 of the E-Government Act requires agencies, to the 
extent practicable, to ensure that all information about that agency 
required to be published in the Federal Register is also published on a 
publicly accessible website. All information about the CSB required to 
be published in the Federal Register may be accessed at http://www.csb.gov. This Act also requires agencies to accept public comments 
``by electronic means.''
    Finally, the E-Government Act requires, to the extent practicable, 
that agencies ensure that a publicly accessible Federal Government 
website contains electronic dockets for rulemakings under the 
Administrative Procedure Act of 1946 (5 U.S.C. 551, et seq.). Under 
this Act, an electronic docket consists of all submissions under 
section 553(c) of title 5, United States Code; and all other materials 
that by agency rule or practice are included in the rulemaking docket 
under section 553(c) of title 5, United States Code, whether or not 
submitted electronically. Regulations.gov will contain an electronic 
docket for this rulemaking.

Plain Writing Act of 2010 (5 U.S.C. 301)

    Under this Act, the term ``plain writing'' means writing that is 
clear, concise, well-organized, and follows other best practices 
appropriate to the subject or field and intended audience. To ensure 
that this rulemaking has been written in plain and clear language so 
that it can be used and understood by the public, the CSB has modeled 
the language of this proposed rule on the Federal Plain Language 
Guidelines.

National Technology Transfer and Advancement Act of 1995 Section 12(d) 
(15 U.S.C. 272 Note)

    The NTTAA requires agencies to ``use technical standards that are 
developed or adopted by voluntary consensus standards bodies'' to carry 
out policy objectives determined by the agencies, unless they are 
``inconsistent with applicable law or otherwise impractical.'' The CSB 
has determined that there are no voluntary consensus standards that are 
appropriate for use in the development of this rule.

Congressional Review Act

    A final rule will be subject to the Congressional Review Act (CRA). 
5 U.S.C. 801(a)(1)(A). However, a final rule resulting from this 
rulemaking will not be a major rule as contemplated under the CRA. See 
5 U.S.C. 804(1).

Discussion of the Proposed Rule

    The CSB proposes to add a new part to title 40 of the Code of 
Federal Regulations, which will appear as a new part 1604. The proposed 
part will consist of six sections. Proposed Sec.  1604.1 states the 
purpose of the rule. Proposed Sec.  1604.2 sets forth key definitions. 
Section 1604.3 sets forth who must file a report and when. Section 
1604.4 describes the information required in each report. Section 
1604.5 implements the enforcement provisions authorized by 42 U.S.C. 
7412(r)(6)(O). Section 1604.6 confirms that the procedure for seeking 
records obtained pursuant to the rule is governed by the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, the CSB's procedural regulations 
for disclosure of records under the FOIA, 40 CFR part 1601, and other 
pertinent Federal disclosure laws.

Sec.  1604.1 Purpose

    The purpose of the rule is to require an owner/operator to notify 
the CSB promptly of any accidental release within the CSB's 
investigatory jurisdiction. When the enabling legislation was adopted, 
there was no other reliable method for the government to learn quickly 
of an accidental release other than requiring that an owner/operator 
inform the government. A reporting rule should lead to the provision of 
information useful to CSB in assessing its jurisdiction and making 
deployment decisions.
    Over the years, interested parties have suggested other potential 
benefits of a reporting rule. For example, GAO opined 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).
    The CSB appreciates the points made in the GAO report. However, the 
CSB is mindful that its enabling legislation

[[Page 67905]]

makes clear that in mandating this reporting rule, Congress did not 
intend that such a rule would supplant or conflict with existing public 
information and safety laws, such as The Emergency Planning and 
Community Right to Know Act (EPCRA), which is focused on emergency 
response, the protection of public health and safety, and the public 
release of information to mitigate risks to the public.\14\
---------------------------------------------------------------------------

    \14\ See section 303 of EPCRA.
---------------------------------------------------------------------------

    The CSB, thus, has focused the rule on requiring an owner/operator 
to promptly report an accidental release to the CSB. The CSB's ability 
to propose a rule designed to achieve more than a meaningful 
notification is limited by the language and purpose of its enabling 
statute.

Sec.  1604.2 Definitions.

    Section 1604.2 establishes definitions for the proposed rule. A few 
comments in response to the ANPRM suggested that CSB use definitions 
established in other rules. As explained below, the CSB could not use 
certain existing definitions in other rules. For example, the CSB is 
required to use certain definitions that are established at 42 U.S.C. 
7412(r)(2)(A)-(C), which provides definitions for the terms 
``accidental release,'' ``stationary source,'' and ``regulated 
substance.'' Although not a mandatory definition, the CSB determined 
that one definition in section 112(r) (``owner or operator'') was 
appropriate and relied on that existing definition. The CSB also set 
forth its own proposed definitions for certain terms important to 
implementation of the rule. The discussion below addresses most of the 
proposed definitions:
    Accidental release means an unanticipated emission of a regulated 
substance or other extremely hazardous substance into the ambient air 
from a stationary source.
    This proposed definition is adopted verbatim from 42 U.S.C. 
7412(r)(2)(A). The CSB uses the statutory term ``accidental release'' 
throughout the rule to refer to an event meeting the specific statutory 
criteria under 42 U.S.C. 7412(r)(2)(A). To the extent there are 
references, in this or other related documents, to a ``chemical 
accident'' or ``incident,'' the context and specific facts will 
determine whether the event meets the statutory definition of an 
``accidental release,'' or is instead employed generically to describe 
an event that may or may not satisfy the statutory definition of an 
accidental release.
    Ambient air means any portion of the atmosphere inside, adjacent 
to, or outside a stationary source.
    Although mentioned many times throughout the Clean Air Act, there 
is no statutory definition of the term ``ambient air.'' Accordingly, 
the CSB proposes a plain meaning definition. The plain meaning of the 
phrase ``ambient air'' is defined by two words--ambient, meaning 
``existing or present on all sides'' and ``air,'' meaning ``the mixture 
of invisible odorless tasteless gases (as nitrogen and oxygen) that 
surrounds the earth'' (see, e.g., https://www.merriam-webster.com/dictionary/ambient; https://www.merriam-webster.com/dictionary/air).
    The CSB is aware that EPA defined the term ``ambient air'' as part 
of its rule implementing the National Primary and Secondary Ambient Air 
Quality Standards. That definition reads as follows: ``Ambient air 
means that portion of the atmosphere, external to buildings, to which 
the general public has access.'' 40 CFR 50.1(e) While this definition 
may work well in terms of implementation of the National Primary and 
Secondary Ambient Air Quality Standards, its use in the CSB's proposed 
rule would undercut a primary purpose of section 112 of the Clean Air 
Act Amendments of 1990--to protect workers inside structures at a 
stationary source.
    Extremely hazardous substance means any substance that 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 the EPA Administrator under 42 U.S.C. 7412(r)(5).
    The term ``extremely hazardous substance'' is not defined in the 
CSB's enabling legislation. However, 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.'' Sen. R. 101-228 at __ (1989), 
reprinted in 1990 U.S.C.C.A.N. 3385, 3596. 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 has therefore proposed a definition of ``extremely 
hazardous substances,'' which focuses on the consequences of a 
substance when it is accidentally released. Thus, an ``extremely 
hazardous substance'' includes any substance that alone, or in 
combination with other substances or factors, causes death, serious 
injury, or substantial property damages.
    Other laws or rules that define or list ``hazardous substance(s)'' 
may provide useful guidance as to what is an ``extremely hazardous 
substance'' for purposes of the CSB's definition, but such lists or 
associated threshold quantities do not control the CSB's definition. 
Again, the pertinent legislative history supports an expansive 
definition:

    Extremely hazardous substances would also include other agents 
which may or may not be listed or otherwise identified by any 
Government agency currently which may as the result short-term 
exposures associated with releases to the air cause death, injury or 
property damage due to their toxicity, reactivity, flammability, 
volatility or corrosivity.

S. Rep. 101-228 at 212 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 
3596.
    For example, the CSB definition is not limited to substances listed 
as a ``regulated substance'' defined as such under 42 U.S.C. 
7412(r)(3).

    The accidents which the Board is to investigate are those which 
result from the production, processing, handling or storage of a 
chemical substance (not limited to the extremely hazardous 
substances listed under subsection (c)) which result in a death, 
serious injury, or substantial property damage.

S. Rep. 101-228 at 231 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 
3615.
    Thus, [extremely hazardous substances would include, but are not 
limited to, those substances which are specifically listed by the 
Administrator under subsection (c).'' S. Rep.101-228 at 212 (1989), 
reprinted in 1990 U.S.C.C.A.N. 3385, 3596.
    Nor should the CSB definition be limited by threshold quantity 
limits set by other laws. A ``regulated substance'' includes a 
``threshold quantity'' set by the Administrator under 42 U.S.C. 
7412(r)(5). The CSB definition of extremely hazardous substance does 
not incorporate the concept of a threshold quantity. Limiting the CSB 
definition by reference to threshold limits set by other laws would 
potentially lead to results inconsistent with the CSB's statutory 
purpose. For example, the accidental release of a ``regulated 
substance'' that does not meet a threshold quantity can still cause 
serious injuries and death. There is nothing in the statutory scheme

[[Page 67906]]

to suggest that a death or serious injury caused by less than a 
threshold quantity of a ``regulated substance'' or other hazardous 
substance falls outside the CSB's investigatory jurisdiction.
    To emphasize its broad definition and the inapplicability of a 
generic threshold limit, the CSB definition of ``extremely hazardous 
substance'' includes the phrase ``including but not limited to any 
`regulated substance' at or below any threshold quantity set by the EPA 
Administrator under 42 U.S.C. 7412(r)(5).''
    General public means any person except for workers, employees or 
contractors working for (or on behalf of) the owner or operator of a 
stationary source from which an accidental release has occurred and any 
person acting in the capacity of an emergency responder to an 
accidental release from a stationary source.
    Under its enabling legislation, the CSB is directed to treat 
certain investigations as mandatory. See generally 42 U.S.C. 7412(r)(E) 
(``In no event shall the Board forego an investigation where an 
accidental release causes a fatality or serious injury among the 
general public, or had the potential to cause substantial property 
damage or a number of deaths or injuries among the general public.''). 
The proposed definition reflects the specific statutory emphasis that 
the CSB investigate any accidental release that impacts or threatens 
people not involved directly in the operations of a stationary source. 
The CSB is aware that EPA has longstanding policy interpretations of 
``general public'' for purposes of implementing other sections of the 
Clean Air Act. However, these policy interpretations are neither 
binding nor pertinent to the CSB's implementation of an accidental 
release-reporting rule under its statutory authority.
    Owner or operator means any person who owns, leases, operates, 
controls, or supervises a stationary source.
    This proposed regulatory definition is adopted verbatim from 42 
U.S.C. 7412(a)(9). As the enabling legislation recognizes, a stationary 
source may be under the ``common control'' of different entities. See 
42 U.S.C. 7412(r)(2)(C). Multiple owners, leaseholders, or operators 
can exist alongside each other in complex business relationships such 
that a stationary source may be considered under the common control of 
two or more entities. Therefore, this definition applies to any person 
or entity who owns, leases, operates, controls, or supervises a 
stationary source, and can include parties with a joint interest, 
partnership interest, partial ownership interest, co-ownership 
interest, or any otherwise co-responsible parties who, in some manner, 
share in the ownership, leasing, operation, control or supervision of a 
stationary source.
    These parties are in the best position to coordinate among 
themselves to determine which entity should file an accidental release 
report under this rule for an accidental release. For the purpose of 
efficiency, multiple owner/operators may agree in advance or at the 
time of release to a single, consolidated report on behalf of one or 
more parties who are responsible for reporting an accidental release 
from a stationary source. This proposed definition allows for the 
owner(s)/operator(s) to decide for themselves how best to meet the 
requirements of the rule, as long as an accidental release report is 
submitted by one of the parties following an accidental release.
    Property damage means damage to, or the destruction of, tangible 
public or private property, including loss of use of that property.
    This definition is well established for purposes of commercial 
liability insurance policies, and therefore most owner/operators should 
be familiar with its meaning and have no difficulty in determining 
whether there has been any property damage. In addition, the proposed 
definition confirms that pertinent property damage is not limited to 
the stationary source, but also includes damage to private property 
(e.g., homes) and public property outside the stationary source.
    Regulated substance means any substance listed by the EPA 
Administrator pursuant to the authority of 42 U.S.C. 7412(r)(3).
    This definition is based on the definition at 42 U.S.C. 
7412(r)(2)(B). The statute simply refers to ``substances listed under 
paragraph (3).'' For clarity, the definition here refers to the full 
citation at 42 U.S.C. 7412(r)(3) in order to encompass the ``List of 
Substances.''
    Serious injury means 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.
    As suggested by comments in response to its ANPRM, this definition 
is based on OSHA's regulations pertaining to Recording and Reporting 
Occupational Injuries and Illness, found at 29 CFR 1904.7. Although 
OSHA's regulatory requirement focuses on ``significant'' injuries, the 
CSB finds the word ``significant'' to be generally synonymous with the 
word ``serious'' in this context (compare https://www.merriam-webster.com/dictionary/significant?utm_campaign=sd&utm_medium=serp&utm_source=jsonld#synonyms 
and https://www.merriam-webster.com/dictionary/serious). The CSB 
further concluded that use of an existing OSHA definition would 
contribute to greater understanding among the regulated community and 
help to ensure faster and more effective compliance with the new 
regulation.
    Stationary source means any buildings, structures, equipment, 
installations 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.
    This definition is taken verbatim from 42 U.S.C. 7412(r)(2)(C). 
While this definition reiterates longstanding statutory language, the 
CSB notes that the phrase ``same industrial group'' requires some 
additional clarification. The CSB interprets this phrase as referring 
to ``industry group'' under the Standard Industrial Classification 
system (SIC), which was in common use when the Clean Air Act Amendments 
of 1990 were signed into law. SIC employed a four-digit classification 
system; the first three digits in the four-digit sequence indicated the 
``industry group.''
    In 1997, the SIC system was replaced by North American Industry 
Classification System (NAICS). NAICS employs a six-digit classification 
system. Under NAICS, the fourth digit in the six-digit sequence 
indicates industrial group. www.census.gov/eos/www/naics/faqs/faqs.html#q5.
    Substantial property damages means property damage, at or outside 
the stationary source, estimated to be equal to or greater than 
$1,000,000.
    In developing its definition, the CSB began with the plain meaning 
of the statute.\15\ The CSB determined that the word ``substantial'' 
must be accorded some significance. Merriam Webster defines substantial 
as ``considerable in quantity: significantly great. . . .'' Clearly, 
property damage in a minimal amount (i.e., $100) should not be 
considered ``substantial.'' This

[[Page 67907]]

interpretation is consistent with the available legislative history:
---------------------------------------------------------------------------

    \15\ The CSB separately defined the words ``property damage.'' 
See discussion above.

    The Board is authorized to investigate accidental releases which 
cause substantial property damage. Substantial damage would include 
fires, explosions, and other events which cause damages that are 
very costly to repair or correct, and would not include incidental 
---------------------------------------------------------------------------
damage to equipment or controls.

H.R. Conf. Rep. No. 952, 101st Cong., 2d Sess. 340 (1990), reprinted in 
1990 U.S.C.C.A.N. 3867, 3872.
    At the same time, the CSB determined that a very high dollar 
threshold, i.e., $10,000,000, would not be consistent with the 
statutory intent because there are numbers far below that amount that 
any reasonable person would consider substantial. The difficulty, of 
course, is where to draw the line between substantial and non-
substantial damages. The CSB looked at different sources for 
guidance.\16\
---------------------------------------------------------------------------

    \16\ CSB understands that FEMA has defined the phrase 
``substantial damage'' as ``damage of any origin sustained by a 
structure whereby the cost of restoring the structure to its before-
damage condition would equal or exceed 50 percent of the market 
value of the structure before the damage occurred.'' 44 CFR 209.2. 
However, the CSB determined that this definition was too narrow 
(property damage limited to structure) and would be less easy to 
apply than an estimate of monetary damage.
---------------------------------------------------------------------------

    In reviewing its own work, the CSB concluded that nearly all of its 
published investigation reports involved a fatality or serious injury. 
This is noteworthy only because the CSB has not relied heavily on this 
factor in selecting accidental releases to investigate in-depth. With a 
low-dollar, property-damage-only accidental release, the CSB might 
receive a number of reports that would be unlikely candidates for 
further CSB investigation.
    In response to its ANPRM, the CSB received few comments regarding 
this definition. The American Chemistry Council's comment suggested 
that the CSB adopt the DOT regulatory limit of $50,000. CSB-ANPR0901-
000115. The CSB also considered API 754 (2016). API 754 suggests 
recording ``fire or explosion damage greater than or equal to $100,000 
of direct cost'' under its Tier 1 category. Under API 754 Table D.1-
Tier 1 Process Safety Event Severity Weighting, $100,000 in property 
damage would score one point. $1,000,000 would score three points, 
$10,000,000 would score 9 points, and $100,000,000 would score 27 
points.
    The CSB also considered EPA's ``Summary of Quantified Damages'' in 
its proposed amendments to its RMP rule. 81 FR 13637 at 13642-43, March 
14, 2016. In looking at EPA RMP-covered facilities over a 10-year 
period, the EPA estimated an average of $1,354,578 in onsite property 
damage for each accident. Id. However, this figure is only an average, 
not a median, and is limited to only a subset of facilities within the 
scope of the proposed rule.
    After reviewing the relevant factors, the CSB has proposed 
$1,000,000 as a threshold for purposes of defining ``substantial 
property damages.'' The CSB believes this amount should likely capture 
accidental releases of significance when there is no other basis for 
jurisdiction (no deaths or serious injuries). At the same time, this 
threshold should reduce the number of reports required when there is 
very little likelihood of serious scrutiny or follow-up investigation 
by the CSB because the accidental release did not cause any deaths or 
serious injuries.
    The CSB notes, however, that any proposed threshold, even a much 
lower one, may exclude a small number of very significant accidental 
releases. This might occur if an accidental release fortuitously did 
not result in death, serious injury, or substantial property damages, 
but nevertheless involved the release of a significant amount of an 
extremely hazardous substance such as hydrofluoric acid. Despite the 
potential significance of such an accidental release, the CSB is 
concerned that its statutory language--``death, serious injury, or 
substantial property damages''--does not authorize it to require 
reports when all three consequences are absent.
    The CSB welcomes comments with respect to the proposed definition 
of ``substantial property damages.'' Based on additional comment and 
information, the CSB may revise the dollar threshold in its definition 
to a level below $1,000,000.

Sec.  1604.3 Reporting an Accidental Release

    Section 1604.3 establishes what constitutes a reportable accidental 
release, and a deadline of four hours for reporting such an accidental 
release directly to the CSB. This section also provides for two 
alternatives for reporting an accidental release in attempt to avoid 
duplicative reporting.

Avoiding Duplication

    In its ANPRM, the CSB asked for comments on the following 
questions: ``Should an initial report be made to the CSB or the 
National Response Center?'' The CSB received a number of comments that 
suggested that reports be submitted to the National Response Center 
(NRC) in order to avoid duplicative reporting. The CSB has long sought 
to avoid duplicative reporting requirements by arguing that it had 
alternative methods for collecting the same information even in the 
absence of a rule. For this reason, the CSB understands the concerns 
expressed about additional reporting requirements.
    In developing this proposed rule, the CSB also considered whether 
accidents reported to the NRC under other laws could satisfy the CSB's 
reporting rule. CSB considered information provided in reports it 
already receives from the NRC, and reviewed its own incident database 
to determine how many reports in the database, on average, are based on 
reports the CSB receives from the NRC.
    The CSB has determined that there is no simple method to ensure 
that reports filed with NRC under other laws would satisfy the 
requirements of a CSB reporting rule. The NRC collects information 
based on the type of event (i.e., storage tank accidents), not specific 
laws. Accordingly, there is no certain way to determine whether 
information reported to the NRC under a certain law will also satisfy 
CSB requirements. Some laws may seem to overlap with CSB's requirements 
but include certain exceptions, i.e., threshold quantities. Under such 
laws, if the accidental release does not meet the threshold quantity, 
no report will be made to the NRC.
    However, in conferring with NRC, CSB was able to determine that 
reports under 40 CFR 302.6 (although not labeled as such) could be 
reliably identified via a modified search algorithm. Accordingly, if an 
owner/operator knows that it has submitted a report to NRC under 40 CFR 
302.6, the owner/operator is not required to file a separate report 
with the CSB. Rather, the owner/operator is simply required to notify 
the CSB of the pertinent NRC identification number. The CSB would then 
use this number to ensure that its search algorithm is capturing all 
pertinent accidental releases reported to the NRC.
    This approach is consistent with the CSB's legislative history, 
which provides in pertinent part, that the CSB's ``reporting 
requirements may be coordinated with other reporting requirements 
established by the Agency [EPA] (for instance, under section 103 of 
CERCLA).'' S. Rep. No. 101-228 at 236 (1989), reprinted in 1990 
U.S.C.C.A.N. 3385, 3620.
    Moreover, the CSB's legislative history provides:

    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

[[Page 67908]]

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 
officers whenever an accidental release requiring an investigation 
has occurred.

Id.

Reports to CSB

    Other than reports submitted to the NRC under 40 CFR 302.6, the 
proposed rule requires that a report be made to the CSB directly. 
According to CSB estimates, the proposed rule will require 
approximately 200 reports per year. However, the total number made to 
CSB should be fewer because some reports made to NRC under 40 CFR 302.6 
will satisfy the CSB's requirements. In any event, compliance by 
telephone, or by filing a report directly with the CSB (through 
completion of a form), should not be a complicated or time-consuming 
matter.

Reporting Deadline

    In its ANPRM, the CSB asked for comments on the following question: 
``How soon after an accident should reporting occur?'' The CSB received 
a range of comments. These comments suggested a reporting deadline of 
between two and twenty-four hours. The proposed rule includes a four-
hour deadline.
    In response to the 2009 ANPRM, the American Society of Safety 
Professionals commented, ``a minimum of three hours is needed for a 
site's emergency response priorities and any extenuating circumstances 
to be handled.'' The CSB understands that the first several hours 
following an accidental release require a focus on emergency response 
actions. Accordingly, the CSB decided against an ``immediate report'' 
or one within an hour or two of an accidental release.
    At the same time, the CSB needs to make deployment decisions as 
quickly as possible so that investigators can arrive at the accident 
site within the first 24 hours after the accidental release. CSB has 
learned from experience that it is often crucial to begin an 
investigation within this timeframe to examine physical evidence before 
it is disturbed, and to interview witnesses while the facts and 
circumstances are still fresh.
    In order to achieve this goal, the CSB determined that the proposed 
rule should require notification that would allow the CSB sufficient 
time to receive a report, analyze preliminary information, make a 
deployment determination, and deploy investigators to the site of the 
accidental release within 24 hours. The proposed four-hour deadline 
should be sufficient for the CSB to achieve its deployment goal while 
not interfering with immediate emergency response activities.

Revisions to Report

    In response to the 2009 ANPRM, the American Chemistry Council's 
comment suggested that the CSB's reporting rule include a provision for 
a reporting party to correct unintentionally incorrect information 
within a reasonable period of time following an accidental release. The 
CSB agrees with this comment, and the proposed rule includes a 
provision that allows an owner/operator to file any revision or update 
to an initial report submitted either to the CSB or to the NRC. The 
proposed rule is not intended to create a trap for any owner/operator 
submitting a report on short notice based on the best available 
information.

Sec.  1604.4 Information Required in an Accidental Release Report

    Section 1604.4 details the information that must be submitted by an 
owner/operator in a report. The information required is consistent with 
information that the CSB has collected for years from various public 
sources, and has attempted to verify through public information 
channels, or through phone calls or email exchanges with the 
representatives of an owner/operator in the immediate aftermath of an 
accidental release. This approach has not always been ideal for either 
the CSB or an owner/operator because CSB must make multiple phone calls 
or send multiple emails to an owner/operator over a period of hours and 
days. In this section, the CSB has attempted to balance its need for 
prompt information with the desirable goal of obtaining as much 
pertinent information as possible.
    As reflected in the purpose of the rule (1604.1), the CSB has 
determined that the prompt reporting of basic information is its 
highest priority. While additional, detailed information is desirable, 
the CSB concluded that it would need to extend the reporting deadline 
if it added additional information requirements beyond those set out in 
the proposed rule. Some additional requirements would arguably require 
additional hours, or even days, for compliance. At some point, the 
primary purpose of the rule--prompt notification of an accidental 
release--would be undermined by the quest for more information.
    The CSB has also considered the need of an owner/operator to focus 
on numerous matters in the immediate aftermath of accidental release. 
Accordingly, the proposed accidental release reports will require only 
information that is already known or should be available to an owner/
operator soon after an accidental release. The required information is 
also limited in scope to critical information required for the CSB to 
make informed decisions about its jurisdiction, interagency 
coordination, and deployment decision-making. For example, paragraphs 
(a)-(e) require only minimal contact information and a basic 
description of the accidental release. Paragraph (g) requests the 
relevant CAS Registry Number associated with the chemical(s) involved 
in the accidental release.\17\ The CAS information will help the CSB in 
making informed decisions about deploying investigators and initiating 
an investigation. Paragraphs (h), (i), (j), and (l)(1)-(3) include an 
important qualifier, ``if known.'' This qualifier recognizes that some 
or all of this information may not be known within four hours of an 
accidental release.
---------------------------------------------------------------------------

    \17\ A CAS Registry Number is assigned by an organization called 
CAS (a division of the American Chemical Society). See https://www.cas.org/support/documentation/chemical-substances/faqs#2. It is 
a unique numberic identifier that is well known to the companies who 
produce, handle, or ship chemicals and will require minimal effort 
to include in a report.
---------------------------------------------------------------------------

    Paragraph (k) asks the owner/operator to provide an estimate of 
``property damage at or outside the stationary source.'' The owner is 
required to make an estimate only, not report an exact figure, or to 
state whether or not the amount of property damage meets or exceeds the 
definition for ``substantial property damages.'' There will be certain 
instances when an owner or operator may need to assess whether a report 
is required at all by reference to the definition of ``substantial 
property damages.'' However, for purposes of including a number in the 
report, the owner/operator may simply include the best available 
estimate, regardless of whether the amount falls above or below the 
threshold for reporting. The CSB also anticipates that the number of 
reports required to be submitted solely because of the ``substantial 
property damages'' criterion should be rather limited.

Sec.  1604.5 Failure to Report an Accidental Release

    Paragraphs (a) and (b) of Sec.  1604.5 implement the enforcement 
provisions authorized by 42 U.S.C. 7412(r)(6)(O).

[[Page 67909]]

For one year following the effective date of the rule, the CSB will 
refrain from referring violations for enforcement, unless there is a 
knowing failure to report. This policy is required to allow adequate 
time for compliance education.
    The CSB is confident that most significant matters will come to its 
attention through its ongoing surveillance of accident activity. For 
one year following the effective date of the rule, the CSB will contact 
any owner/operator who it believes should have filed a report. If a 
report is filed immediately following notification, the CSB will not 
refer the failure to report under Sec.  1604.5.
    A significant number of accidental releases are concentrated within 
certain industries. The CSB anticipates that firms within these sectors 
will be the focus of initial compliance education outreach. The 
remainder of accidental releases occur in a range of other sectors. The 
CSB anticipates that additional time may be required to adequately 
educate all sectors. If appropriate, the CSB will extend the grace 
period for such sectors.
    Similarly, accidents involving small facilities with few employees 
require special consideration.
    In some cases, the owner/operator may not be able to report an 
accidental release within four hours, especially if ongoing response 
activities require attention. The CSB has encountered such cases in the 
past and has worked with owners and operators to factor in such 
exceptional circumstances. The grace period described above will 
resolve such issues in a reasonable fashion for at least one year 
following the date of adoption. The CSB will consider a longer-term 
approach to these unique situations and propose appropriate compliance 
guidance and/or amendments to any final rule before the grace period 
has expired.
    The CSB intends to issue compliance guidance periodically, and 
welcomes comments that address unusual circumstances. For example, the 
CSB is interested in comments on what exceptions should be made for 
owner/operators with small operations and few employees.

Sec.  1604.6 Public Availability of Accidental Release Records

    This section is included to clarify that the procedure for seeking 
records obtained pursuant to the rule is governed by the Freedom of 
Information Act, 5 U.S.C. 552, (FOIA), the CSB's procedural regulations 
for disclosure of records under the FOIA, 40 CFR part 1601, and any 
other pertinent Federal disclosure laws.
    Neither 42 U.S.C. 7612(r)(6)(C)(iii) nor 42 U.S.C. 
7612(r)(6)(Q),\18\ alone or in combination, authorize the immediate 
disclosure of accidental release record information apart from the 
requirements of FOIA. Importantly, neither of those two provisions, 
alone or in combination, authorize the immediate disclosure of 
accidental release report information in order to support emergency 
response and public safety operations. Such a reading would potentially 
conflict with the implementation of other existing public information 
and safety laws, such as EPCRA (see section 303), which are directly 
focused on emergency response, the protection of public health and 
safety, and the public release of information to mitigate risks to the 
public.
---------------------------------------------------------------------------

    \18\ CSB does not interpret subsection Q as in any manner 
amending the FOIA.
---------------------------------------------------------------------------

List of Subjects in 40 CFR Part 1604

    Hazardous substances, Reporting and recordkeeping requirements.


0
For the reasons set forth in the preamble, the Chemical Safety and 
Hazard Investigation Board proposes to add 40 CFR part 1604 to read as 
follows:

PART 1604--REPORTING OF ACCIDENTAL RELEASES

Sec.
1604.1 Purpose.
1604.2 Definitions.
1604.3 Reporting an accidental release.
1604.4 Information required in an accidental release report 
submitted to the CSB.
1604.5 Failure to report an accidental release.
1604.6 Public availability of accidental release records.

    Authority:  42 U.S.C. 7412(r)(6)(C)(iii); 42 U.S.C. 
7412(r)(6)(N)


Sec.  1604.1  Purpose.

    The enabling legislation of the Chemical Safety and Hazard 
Investigation Board (CSB) provides that the CSB shall establish 
requirements binding on persons for reporting accidental releases into 
the ambient air subject to the Board's investigative jurisdiction. 42 
U.S.C. 7412(r)(6)(C)(iii). This part establishes the rule required by 
the enabling legislation. The purpose of this part is to require prompt 
notification of any accidental release within the CSB's investigatory 
jurisdiction.


Sec.  1604.2  Definitions.

    Accidental release means an unanticipated emission of a regulated 
substance or other extremely hazardous substance into the ambient air 
from a stationary source.
    Ambient air means any portion of the atmosphere inside or outside a 
stationary source.
    Extremely hazardous substance 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 the Environmental Protection Agency (EPA) Administrator 
under 42 U.S.C. 7412(r)(5).
    General public means any person except for:
    (1) Workers, employees or contractors working for (or on behalf of) 
the owner or operator of a stationary source from which an accidental 
release has occurred; and
    (2) Any person acting in the capacity of an emergency responder to 
an accidental release from a stationary source.
    Owner or operator means any person or entity who owns, leases, 
operates, controls, or supervises a stationary source.
    Property damage means damage to or the destruction of tangible 
public or private property, including loss of use of that property.
    Regulated substance means any substance listed pursuant to the 
authority of 42 U.S.C. 7412(r)(3).
    Serious injury means any injury if it results in any of the 
following:
    (1) Death; one or more days away from work; restricted work or 
transfer to another job; medical treatment beyond first aid; loss of 
consciousness; or
    (2) 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, medical treatment 
beyond first aid, or loss of consciousness.
    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.
    Substantial property damages means estimated property damage at or 
outside the stationary source equal to or greater than $1,000,000.


Sec.  1604.3  Reporting an accidental release.

    (a) The owner or operator of a stationary source must report in 
accordance with paragraph (b) or (c) of

[[Page 67910]]

this section, any accidental release resulting in a fatality, serious 
injury or substantial property damages.
    (b) If the owner or operator has submitted a report to the National 
Response Center (NRC) pursuant to 40 CFR 302.6, the CSB reporting 
requirement may be satisfied by submitting the NRC identification 
number to the CSB immediately following submission of the report to the 
NRC.
    (c) If the owner or operator has not submitted a report to the NRC 
and notified the CSB under paragraph (b) of this section, the owner/
operator must submit a report directly to the CSB within four hours of 
the accidental release and must include the required information listed 
in Sec.  1604.4. A report may be made by email to: [email protected], or 
by telephone at 202-261-7600.
    (d) Notwithstanding paragraphs (a) through (c) of this section, an 
owner or operator of a stationary source, without penalty, may revise 
and/or update information reported to the NRC or CSB by sending a 
notification with revisions by email to: [email protected], or by 
correspondence to: Chemical Safety Board (CSB), 1750 Pennsylvania Ave. 
NW, Suite 910, Washington, DC 20006, within 30 days following the 
submission of a report to the NRC or CSB. If applicable, the 
notification must reference the original NRC identification number. No 
update or revisions should be sent to the NRC.


Sec.  1604.4  Information required in an accidental release report 
submitted to the CSB.

    The report required under Sec.  1604.3(c) must include the 
following information regarding an accidental release as applicable:
    (a) The name of, and contact information for, the owner/operator;
    (b) The name of, and contact information for, the person making the 
report;
    (c) The location information and facility identifier;
    (d) The approximate time of the accidental release;
    (e) A brief description of the accidental release;
    (f) An indication whether one or more of the following has 
occurred:
    (1) Fire;
    (2) Explosion;
    (3) Death;
    (4) Serious injury; or
    (5) Property damage;
    (g) The name of the material(s) involved in the accidental release, 
the Chemical Abstract Service (CAS) number(s), or other appropriate 
identifiers;
    (h) If known, the amount of the release;
    (i) If known, the number of fatalities;
    (j) If known, the number of serious injuries;
    (k) Estimated property damage at or outside the stationary source;
    (l) Whether the accidental release has resulted in an evacuation 
order impacting members of the general public and others, and, if 
known:
    (1) The number of people evacuated;
    (2) Approximate radius of the evacuation zone; and
    (3) The type of individuals subject to the evacuation order (i.e., 
employees, members of the general public, or both).


Sec.  1604.5  Failure to report an accidental release.

    (a) It is unlawful for any person to fail to make reports required 
under this part, and suspected violations of this part will be 
forwarded to the Administrator of the EPA for appropriate enforcement 
action.
    (b) Violation of this part is subject to enforcement pursuant to 
the authorities of 42 U.S.C. 7413 and 42 U.S.C. 7414, which may 
include--
    (1) Administrative penalties;
    (2) Civil action; or
    (3) Criminal action.


Sec.  1604.6  Public availability of accidental release records.

    Accidental release records collected by the CSB under this rule may 
be obtained by making a request in accordance with 40 CFR part 1601, 
the CSB's procedures for the disclosure of records under the Freedom of 
Information Act. The CSB will process, and if appropriate, disclose 
such records, only in accordance with 40 CFR part 1601 and relevant 
Federal information disclosure laws.

    Dated: December 4, 2019.
Thomas A. Goonan,
General Counsel, Chemical Safety and Hazard Investigation Board.
[FR Doc. 2019-26495 Filed 12-11-19; 8:45 am]
 BILLING CODE 6350-01-P