The Chemical Safety and Hazard Investigation Board’s (“CSB’s”) long-awaited accidental reporting rule became effective on March 23, 2020. Under the new rule, 40 C.F.R. §§ 1604.1-1604.6., owners and operators of chemical facilities must report accidental releases that result in fatalities, substantial injury, or substantial property damage over a million dollars. This requirement includes reporting of releases that result in in-patient hospitalization, even if the hospitalization is taken as a precautionary measure. As such, this rule may impose a new reporting requirement for accidental releases from certain pipeline facilities that result in injury or property damage, such as at complex facilities where there is non-transportation related storage, processing or other handling of chemical substances.

Notably, the rule requires reporting a release of “a regulated substance or other extremely hazardous substance” from “stationary sources.” According to the rule, a stationary source is “any building[], structure[], equipment, installation[] or substance emitting stationary activit[y] (i) which belongs to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under control of the same person (or persons under common control), and (iv) from which an accidental release may occur.” Under this broad definition, the reporting requirement is not triggered by any exceedance of a regulatory threshold determined by an agency like the Environmental Protection Agency (“EPA”) (such as under CERCLA or EPCRA). Instead, the requirement includes the reporting of accidental releases of both regulated and unregulated substances.

All reports must be made to the CSB within 8 hours of the event. Within the report, the owner or operator is required to provide a general description of the event and more detailed information, including the amount of the release and the number of fatalities or injuries, if known at the time of reporting. The rule permits an owner or operator to update information within 30 days of the accidental release as more information becomes available or within 60 days of the release, if the owner or operator explains why the updated information could not have been submitted within 30 days.

In accordance with CSB’s directive to investigate releases of chemical hazards and make recommendations to the EPA, the Occupational Safety and Health Administration, and other private organizations, the reports may be provided to outside agencies or used to make recommendations. Importantly, reports may also be subject to open record requests by the public. Although CSB has no independent enforcement authority, an owner or operator that fails to comply with CSB’s new accident reporting requirement may be subject to an enforcement action by the EPA. If an owner or operator fails to properly file a report, CSB will report the suspected violation to the EPA and the violating party may be subject to administrative penalties, civil action, or criminal penalties.

Many pipeline-related accidents are solely related to transportation, and investigations of those accidents are under the purview of the National Transportation Safety Board (“NTSB”) pursuant to a 2002 Memorandum of Understanding with the CSB. Although there is currently no requirement to report accidents to the NTSB, according to the MOU, NTSB maintains the authority to investigate pipeline accidents involving hazardous materials. This jurisdiction includes investigative authority over “(a) accidents that occur during the loading or unloading of hazardous materials into or from containers that are intended to be offered for transport, or that have been delivered for off loading, and (b) accidents that occur during the temporary storage of hazardous materials in transportation.” In contrast, CSB maintains responsibility to investigate accidents at fixed facilities “involving the processing, handling, or storage of a chemical substance.”

There may be instances where incidents at facilities related to pipeline systems could trigger reporting to the CSB, particularly at complex facilities where there is storage, processing or other handling of chemical substances. Determining the appropriate agency for reporting an accidental release may depend on the specific facts of the event, and it would be prudent for operators to consider as part of its planning efforts whether the CSB rule could apply to any of their facilities and make updates to emergency response plans as appropriate. Given the narrow 8-hour reporting time frame, any advance analysis of these issues should assist operators in making decisions at the time of an incident as to whether a report to the CSB may be required.

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Photo of Catherine D. Little Catherine D. Little

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and…

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and administrative adjudication under the Pipeline Safety Act, Natural Gas Act, Clean Water Act (including wetlands), Oil Pollution Act and National Environmental Policy Act. Her team has sought appellate review for enforcement matters with favorable results and works closely with industry and regulators alike to obtain favorable results for their clients. Catherine also regularly counsels clients with respect to pipeline construction and design issues, permitting, confidential investigations, spill and release reporting and response.

Photo of Annie M. Cook Annie M. Cook

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean…

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean Water Act, the Oil Pollution Act, National Environment Policy Act, TCSA, and related state and local laws.  Her team also represents clients regarding related transportation security issues and in responding to inquiries and investigations from the Department of Transportation’s Office of Inspector General. Annie’s clients include owners and operators of oil and natural gas pipeline and related storage, terminal, and LNG facilities as well as other energy industry stakeholders.

Photo of Mandi Moroz Mandi Moroz

Mandi’s practice focuses on assisting clients at all stages of environmental representation, including litigation, regulatory, and transactional matters. She has experience working with clients involved in toxic tort, nuisance, and asbestos litigation. In addition to her litigation experience, she has a breadth of…

Mandi’s practice focuses on assisting clients at all stages of environmental representation, including litigation, regulatory, and transactional matters. She has experience working with clients involved in toxic tort, nuisance, and asbestos litigation. In addition to her litigation experience, she has a breadth of experience working to advise clients on a variety of regulatory needs ranging from potential CERCLA liability in the acquisition of a property to potential violations of federal pipeline safety laws.