U.S. Chemical and Safety Hazard Board Ordered to Promulgate Release Reporting Requirement Rules

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On February 4, the U.S. District Court for the District of Columbia held, in a Clean Air Act (CAA) Citizen Suit, that the U.S. Chemical and Safety Hazard Board (Board), an independent federal agency, has violated the Administrative Procedure Act (APA) by failing to promulgate the accidental release reporting rules required by Section 112(r )(6)( c )(iii) of the CAA. The Board was established by the 1990 Clean Air Act Amendments of 1990, but has failed in all these years to issue these rules. The case is Air Alliance Houston, et al., v. U.S. Chem. and Safety Hazard Investigation Bd.

As relief, the District Court directed the Board “to promulgate reporting regulations within 12 months of the date of the District Court’s order.”

The petitioners are four non-profit groups and one individual: Air Alliance Houston, the Public Employees for Environmental Responsibility, the Louisiana Bucket Brigade, United Support and Memorial for Workplace Families, and Dr. Neil Carman, a program director for the Lone Star Chapter of the Sierra Club. The Board challenged the standing of all petitioners, without success. The District Court reviewed the petitioners’ standing claims with respect to various standing categories: informational, organizational and associational; and determined that they all had standing to bring this complaint.

The District Court then reviewed the defenses proffered by the agency, and found them to be without merit. Apparently, the most salient defense proffered by the Board for its inaction for so many years is that it is a very small agency with limited resources, and it had to prioritize its basic statutory investigatory responsibilities over rulemaking. While the District Court seemed to acknowledge that this may well be true, it remarked that the Board’s appropriate redress was not to ignore the APA (and its requirement that such an action not be unreasonably delayed) or the Congressional directive, but rather to seek relief from this statutory requirement.

It is interesting to note that at the same time that the Board was created, the Congress enacted the Accidental Release Prevention Requirements pursuant to Section 112(r ) of the CAA. The rules implementing these provisions are located at 40 C.F.R. Part 68, and mandate the development of Risk Management Programs by facilities that use and distribute hazardous chemicals. Facilities subject to these rules must develop emergency response plans that include some release reporting responsibilities.

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