The Chemical Safety Board has been a magnet for controversy. Over the years, it has used its broad mandate from Congress to pursue lengthy and sweeping investigations. With an authorization from Congress to investigate the probable cause of any accidental release resulting in a fatality, serious injury or substantial property damages and to issue periodic reports recommending majors to reduce the consequences of accidental releases, it is difficult to see what limits on CSB’s investigative powers exist.
Despite this broad mandate, at least one federal judge has found some limitations on how far a CSB investigation can go. On November 3, 2017, a federal district judge in California ruled on a subpoena dispute concerning the Exxon Mobil 2015 explosion at the company’s Torrance, California location. During CSB’s investigation of that incident, Exxon produced 65 witnesses and 137,000 pages of documents. When the Company received more subpoenas from the CSB with over 50 new requests for information and documents, Exxon decided to challenge the ever-widening investigation of the CSB.
While the judge found that many of the requests the CSB made were within the broad realm of the Agency’s authority, he also established some limits. For example, when the CSB made requests concerning units in the facility that were unrelated to the accident, the judge found that any connection to the 2015 explosion was so attenuated that Exxon Mobil need not reply to them. While the judge’s explanation left something to be desired from industry’s perspective — it would have been nice if he had said why particular requests were unenforceable — the decision still stands for the important proposition that CSB does not have carte blanche in investigations.
The bottom line here is that we now know that CSB can go too far, and companies may now have grounds to challenge some of CSB’s most egregious overreaching. Where the line will be drawn will obviously depend on the particular circumstances involved, but it is at least clear that the old mantra — that the CSB gets whatever it wants — is no longer true.