On February 4, 2019, a D.C. District Court judge ruled that the U.S. Chemical and Safety Hazard Investigation Board (CSB) must issue regulations on reporting requirements for accidental chemical releases within 12 months.
Such regulations were called for in the Clean Air Act amendments of 1990, which stated that CSB shall "establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board's investigatory jurisdiction.” The agency issued an advance notice of proposed rulemaking on chemical release reporting in 2009 but has taken no further steps since that time.
CSB argued that the plaintiffs didn't have standing to sue the agency and that its inaction was not "unreasonably delayed," but the court ruled against the agency on both points.
This will be an important regulatory development to monitor, given its potential implications for a broad range of facilities that handle hazardous chemicals. The CSB’s 2009 advance notice of proposed rulemaking noted that the CSB has broad jurisdiction over chemical releases:
CSB may investigate any incident resulting in serious consequences (fatality, serious injury, or substantial property damage) that involves an emission into the ambient air of any [Risk Management Program (RMP)]-listed hazardous substance or other extremely hazardous substance, no matter what quantity is present or released. … The CSB has not defined such terms as ‘‘ambient air,’’ ‘‘extremely hazardous substance,’’ ‘‘serious’’ injury, or ‘‘substantial’’ property damage, but would likely need to do so in promulgating a rule.
74 Federal Register 30259, 30261 (June 25, 2009).
The broad scope of the CSB’s jurisdiction is evident from the wide range of chemical release accidents the agency has investigated over recent years, including:
- A 2017 fire in Texas after flooding from Hurricane Harvey disabled the refrigeration system at a plant that manufactures organic peroxides.
- A 2017 explosion in Louisiana, where three contractors were fatally injured and seven contractors sustained injuries in an explosion at a containerboard mill.
- A 2016 chemical release at a plant in Kansas that produces distilled spirits and specialty wheat proteins and starches.
- A 2016 refinery fire in Louisiana, where an isobutane release in the sulfuric acid alkylation unit resulted in several worker injuries.
Twelve months is not much time to propose and finalize regulations, particularly for a small agency with limited resources. President Trump has questioned the future of the CSB, and the agency’s activity has waned recently. However, this week’s court decision will force the agency to take some action, including potentially an appeal. Once CSB issues a proposed rule, it will be critical for industry to submit comments to help ensure the rules are appropriate in scope and are not duplicative of other federal and state reporting requirements.