Businesses at risk for accidental release of hazardous materials from stationary sources now face a whole new set of federal requirements for reporting those releases.
On Feb. 21, the U.S. Chemical Safety and Hazard Investigation Board published its final regulation requiring the reporting of these accidental releases. The declared purpose is to assist the board in more quickly determining which of these incidents it should investigate.
The kinds of emissions covered by the new rule are defined as those coming from a stationary source (defined as not being a vehicle, such as a tanker truck or railcar), into the ambient air that causes the death or the in-patient hospitalization of any person (not just an employee), or results in more than $1 million in property damage.
The new rule goes into effect on March 22, but the CSB said that for the first full year it will not refer violations to the Environmental Protection Agency for enforcement — unless it learns of what it terms “a knowing failure to report.”
The CSB was created by Congress in 1990 in the Clean Air Act as an independent federal agency charged with investigating industrial chemical accidents. It is a completely independent agency and operates in a manner similar to the National Transportation Safety Board.
The CSB reporting rule had a difficult birth, but one that is not too surprising for anyone who works in Washington, DC. Congress had ordered the board to create a reporting process in 1990, but the agency didn’t issue an advanced notice of proposed rulemaking until 2009.
The CSB dragged its feet until 2019, when a federal judge ordered it to issue the proposed rulemaking and then take no longer than a year to issue a final version of the rule. It got there just under the wire.
Reacting to comments submitted after the rule proposal was announced, CSB’s final version changes the length of the reporting period and the definition of a “serious” injury that will trigger the reporting obligation. While the proposed version would have required reporting within four hours, the final version lengthens the period to eight hours.
Although the CSB won’t enforce the rule for the first year, “facilities should move quickly to integrate this new reporting scheme into existing release reporting compliance programs,” including training relevant personnel in the reporting requirements, warn attorneys Peter Gray and Amy Symonds of the law firm of Crowell & Moring.
They also stress that the difficulty of such an integration effort should not be underestimated because of different terminology employed by other programs like the emergency release notification requirement of the Emergency Planning and Community Right-to-Know Act and the release reporting requirements of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Within eight hours of an accidental release of an “extremely hazardous substance,” the facility owner or operator must notify and submit a report to CSB either by email or telephone. The regulation describes an “extremely hazardous substance” as any substance that can cause death, serious injury or substantial property damage.
The CSB defines an owner or operator as any person or entity who owns, leases, operates, controls or supervises a stationary source. The extremely hazardous substance definition includes, but is not limited to, chemicals included on the EPA’s list of regulated substances in its Risk Management Program regulations.
The CSB also acknowledges that situations may arise when a facility owner or operator will be unable to report an accidental release within the required eight hours. The new rule states that it will consider a long-term approach to these “unique situations.”
If a facility has already reported the release to the National Response Center (NRC), in accordance with another emergency release notification scheme such as CERCLA, the facility may satisfy its CSB reporting obligation by submitting its NRC identification number to the board. However, the facility must submit its NRC identification number within 30 minutes of submitting the report of a release to the NRC.
An owner or operator of the stationary source may revise or update information reported to the NRC or the CSB without penalty within 30 days of the report’s submission, or up to 90 days after submitting the report if it can explain why it could not submit the revisions within the first 30 days.
Penalties for failure to make a required report after an accidental release can include administrative penalties, civil actions or criminal actions.
However, the new rule does not identify the size of the penalty that EPA may end up imposing for these kinds of violations.
NLRB Adopts Employer Rule
The National Labor Relations Board published a final rule on joint employer status that reverses the position taken earlier by the Obama-era board.
Under the final rule, an employer can be considered a joint employer under the National Labor Relations Act only when it exercises “substantial direct and immediate control” over the essential terms and conditions of another company’s employee.
Essential terms and conditions of employment are defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision and direction.
Even where an employer exercises direct control over another employer’s workers, t will not be held to be a joint employer if such control can be proven to be “limited and routine,” the board says.
The final version of the rule also makes clear that joint-employer status cannot be based solely on indirect influence or a contractual reservation of a right to control when it has never been exercised.
Unions have long been unable to organize the employees of franchises and staffing firms through the client or franchising company. In December, the current board sided with McDonald’s position that it is not a joint employer for organizing purposes.
Major unions are expected to challenge the rule in court, and their allies in Congress have started preparing legislation seeking to reverse it.
AFL-CIO President Richard Trumka said, “This rule will allow companies to manipulate the system to limit working people’s freedom to negotiate for fair wages and benefits by hiring contractors to serve as a shield between the companies and their obligations to employees.”
In February, the Department of Labor adopted a final rule that reduces the likelihood of an employer being defined as a joint employer under Fair Labor Standards Act wage and hour regulations. The Equal Employment Opportunity Commission also is expected to issue a joint employment rule regarding civil rights law in the near future.
