Under Siege, Will The Chemical Safety Board Continue An Aggressive Approach?

Husch Blackwell LLP
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[co-author: Julia Banegas]

With an open slot for the Trump administration to make an appointment, will the Chemical Safety Board (CSB) fall in line with the deregulatory agenda of other federal agencies or continue to recommend stricter rules?

The CSB, created in 1990 as part of the Clean Air Act regulatory scheme, is a five-member investigative body that has no power to regulate or enforce rules on its own. However, its investigations of chemical accidents and explosions, as well as its recommendations, often inform the regulations of other agencies, such as OSHA and EPA.

An agency under siege?

CSB has been in tumult and under siege in recent years. Its leadership has been in flux, leaving the Board with only four decision-making members since the former chair resigned in March 2015 amid charges of mismanagement. On May 21, 2018, Vanessa Allen Sutherland, the former chair, announced her resignation, as well. On June 12, 2018, the Board announced Dr. Kristen Kulinowski as its interim executive authority.  Dr. Kulinowski is an Obama nominee and will remain the head until the Trump administration nominates a replacement. However, it is unclear whether the Trump administration will appoint anyone, since it has proposed eliminating the agency’s budget altogether in each of the last two years.

The last CSB chair resigned after EPA Administrator Scott Pruitt moved to undercut regulations supported by the CSB. In May 2018, Pruitt signed a proposed rule requesting comments on amendments to the Risk Management Program Reconsideration Rule.

In addition, one of CSB’s hallmarks has long been its expansive powers to investigate, including by issuing subpoenas. However, the scope of this authority has come under fire. Following a February 2015 blast at a refinery in Torrance, CA, an oil company successfully challenged a CSB information request as an unlawful expansion of CSB’s subpoena powers. The district court ruled that even under broad administrative subpoena powers accepted by the Ninth Circuit, the request still exceeded the bounds of the subpoena power.

Maintaining an aggressive approach

Despite all of this, the CSB has been one of the more aggressive federal agencies. For instance, in investigating a February 2017 Louisiana paper mill explosion, the CSB has argued in favor of Obama administration proposals to narrow a process safety management (“PSM”) exception. CSB argues that if the exception had been limited; the explosion could have been prevented. But, the current OSHA has so far postponed any narrowing of that exception.

Likewise, CSB’s final report on an organic peroxide plant fire, which began with Hurricane Harvey flooding, urges the EPA and OSHA to increase regulations to protect against severe weather events. The CSB found that flooding created a fire by impairing the cooling systems that safely store chemicals. The report goes so far as to recommend that Congress amend EPA’s authority so that EPA can act as CSB wishes. CSB also urged trade groups to take the lead on reform, saying that EPA notice-and- comment rulemaking can take too long to roll out new regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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