After more than 20 years of delay and a successful lawsuit by PEER and chemical safety advocacy groups, the Chemical Safety Board (CSB) dashed hopes that it would at long last issue a robust rule requiring the reporting of incidents involving the release of dangerous chemicals from oil refineries and other industrial facilities. While superficially complying with the court order to issue the rule, the content of the rule does almost nothing to advance the cause of chemical safety.
Concerned parties, and the CSB itself in an abandoned 2009 Advance Notice of Proposed Rulemaking, had advocated a rule that would provide useful information to the Board itself as well as workers and their unions, affected communities, medical and safety professionals, and researchers. The reporting rule would provide immediate notice of chemical incidents to the Board and to affected workers and communities of the nature of an accident and what chemicals in what quantities had been released. Equally important, gathering the reported information and creating a database of such incidents would allow the CSB and outside groups to analyze trends, patterns and vulnerabilities to inform actions to prevent future accidents.
The final rule abandons all of these purposes except that of informing the CBS’s decisions on whether to deploy an investigation team to an accident site. As such, the rule only requires one report 8 hours after the accident, with minimal information on the identify of the facility and the nature of the release and its immediate impacts, “if known.” There is no requirement for follow-up reports that could provide more in-depth and accurate information that could assist in determining root causes of accidents and means of preventing future accidents.
The CSB conducts formal investigations of only a small fraction of chemical incidents each year. The rule entirely missed the opportunity to provide useful information about the great majority of incidents that the CSB does not investigate.
The reporting requirement is so negligible, and so directed at minimizing the compliance burden on industry, that the CSB estimated it would take a facility 15 minutes to file the report, and the total labor burden of compliance for all facilities nationwide would be 50 hours a year.
Equally concerning, even the minimal reports required will not be collected in any centralized, searchable, publicly available database. Only fragmentary information can be accessed through Freedom of Information Act requests, a cumbersome and lengthy process. This renders the reporting rule almost completely useless for discovering and analyzing vulnerabilities and trends that could further the cause of chemical safety.
PEER and the other plaintiffs are considering next steps, including potential litigation to challenge the weak new rule.