Don't Just Investigate; Promulgate! Court Orders Chemical Safety Board To Produce Chemical Reporting Requirements

Key Points

A federal court recently ordered the CSB to promulgate final accidental chemical release reporting regulations within 12 months. The Clean Air Act requires that those regulations be binding on all entities subject to the CSB's investigation jurisdiction. Owners and operators of industrial facilities can reasonably expect to see a new rulemaking—with an accompanying opportunity to submit public comments—by the fall. Since its inception, the U.S. Chemical Safety and Hazard Investigation Board (CSB or the “Board”) has not required reporting of accidental chemical releases. After a scathing court order from a federal judge this week, however, the Board might just find itself reporting for duty after all.

Air Alliance Houston v. CSB

In a succinct, yet forceful, decision, Judge Amit Mehta of the U.S. District Court for the District of Columbia lambasted the CSB for what he called “an egregious abdication of a statutory obligation” to promulgate reporting regulations under the Clean Air Act Amendments of 1990.1 Even by its own admission, the CSB is required by the Clean Air Act to “establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board's investigatory jurisdiction.”2 In its decision, the court dismissed the CSB's arguments that plaintiff environmental groups lacked standing and found that the Board did “unreasonably delay” action after having failed to promulgate regulations for nearly 28 years.

Ultimately, the court ordered the CSB to promulgate final accidental chemical release reporting regulations within 12 months.3 Absent a successful appeal or request for extension by the CSB, owners and operators of industrial facilities can expect to see a new rulemaking—with an accompanying opportunity to submit public comments—by the fall.

Potential Rulemaking Approaches

With a mere calendar year to finalize regulations, the CSB will need to act promptly. Although it may look to its stalled attempt in 2009 to promulgate reporting regulations, it is anyone's guess whether the Board will ultimately take a different direction altogether given the change of administrations. Nevertheless, in its 2009 advance notice of proposed rulemaking, the CSB announced its intent to promulgate a rule that wouldfurther its current efforts to improve data collection and would permit more accurate surveillance of chemical incidents.4 The Board requested public comment on four general...