Four groups have filed a legal complaint against the U.S. Chemical Safety and Hazard Investigation Board (CSB) for not meeting a Clean Air Act (CAA) requirement to issue a regulation requiring that operators of chemical facilities report accidental releases of chemicals to the ambient air.
Established by Congress in the CAA—and recently revived by Congress when threatened with elimination in the White House’s budget proposal—the CSB is the only federal body whose primary mission is to investigate chemical accidents.
CAA Section 7412(r)(6)(C)(iii) states that the CSB “shall … establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigatory jurisdiction. Reporting releases to the National Response Center [NRC], in lieu of the Board directly, shall satisfy such regulations. The National Response Center shall promptly notify the Board of any releases which are within the Board’s jurisdiction.”
The complaint was filed in the U.S. District Court for the District of Columbia by Air Alliance Houston, Public Employees for Environmental Responsibility (PEER), Louisiana Bucket Brigade, and United Support and Memorial for Workplace Fatalities.
As noted in the complaint, in 2009, the CSB issued an advanced notice of proposed rulemaking ((ANPR), June 25, 2009, FR) inviting public comments on the CAA reporting provision and saying it would use those comments in writing a final regulation.
In the ANPR, the CSB described the various avenues through which it receives information about accidents and releases. These include alerts from the NRC, the National Transportation Safety Board [NTSB] Communications Center, and through various news outlets.
The CSB also noted a 2004 report by the Government Accountability Office (GAO). The GAO stated that the value of a reporting rule is broader than ensuring that the CSB receives mere notification of incidents and would serve to “better inform the agency of important details about accidents that it may not receive from current sources.” The GAO also suggested that the information obtained through a reporting rule could improve CSB’s ability to “target its resources, identify trends and patterns in chemical incidents, and prevent future similar accidents.”
The options the CSB offered for comment included a comprehensive reporting rule that would require reporting of all chemical accidents and a targeted approach for incidents that met significant consequence thresholds (e.g., incidents that result in death, serious injuries requiring in-patient hospitalization, large public evacuations, very substantial property damage, or acute environmental impact).
One of Five CAA Duties
According to PEER, the ANPR was approved unanimously by the four CSB board members, and the CSB said that it recognized that a reporting regulation is clearly required by the statute. PEER adds that the ANPR was also supported by community and public health groups but opposed by industry.
“CSB took no further action to promulgate the proposed regulation even though this key rule was one of the Board’s ‘five enumerated duties,’ according to the agency’s legislative history,” said PEER. “Congress has clearly required, and the CSB has acknowledged, that a rule must be promulgated to inform the public as to what chemicals industries have spewed into the atmosphere following an accident. Our lawsuit would finally implement this unambiguous yet long-neglected mandate.”
The complaint to the district court is here.