Mitigating the Next Disaster: Strengthening the U.S. Chemical Safety and Hazard Investigation Board

Abstract

This article draws attention to an agency overlooked by the legal community: the U.S. Chemical Safety and Hazard Investigation Board (CSB), which investigates industrial chemical accidents and provides recommendations to reduce the risk of future accidents. The CSB was harmed by an internal scandal in 2014 and the Trump Administration more recently, but the CSB has an essential role in preventing chemical disasters. Its work is crucial, especially because climate change has increased the frequency of technological disasters caused by natural disasters (natechs), such as the Arkema plant explosion following Hurricane Harvey. This article assesses the CSB, compares its structure with like agencies in other countries, and argues that strengthening the CSB is essential to mitigating future chemical and natech disasters.

Notes

1 See infra text accompanying notes 15–17.

2 See Jeff Johnson, The Uneven World of Chemical Accident Investigation, Chem. & Eng’g News (Aug. 29, 2016), https://cen.acs.org/articles/94/i34/uneven-world-chemical-accident-investigation.html [hereinafter Johnson, The Uneven World] (“The rest of the world is jealous of the CSB. We wish we had one because its purpose is to investigate and understand what happened—not because of community pressure or for the purpose of prosecution” (quoting Trish Kerin, Australian Dir. of the Inst. of Chem. Eng’rs Safety Ctr.)); infra section I.A.1.

3 See infra section I.C.

4 See infra section II.B.1.

5 About the CSB, CSB, https://www.csb.gov/about-the-csb [hereinafter About the CSB] (last visited Jan. 15, 2020).

6 See Alex Fox, U.S. Breaks Record for Billion-Dollar Climate Disasters in 2020 (Jan. 14, 2021), https://www.smithsonianmag.com/smart-news/us-breaks-record-billion-dollar-disasters-2020-180976750 (“The record number of climate change-exacerbated weather disasters this year drives home the fact that . . . the impacts of climate change are no longer subtle . . . .”); Billion-Dollar Weather and Climate Disasters: Overview, Nat’l Ctrs. for Env’t Info., https://www.ncdc.noaa.gov/billions (tracking the number of billion-dollar climate events in the United States and noting record-breaking number of disasters—twenty-two) (last updated Jan. 8, 2021).

7 See European Comm’n, NATECH Accidents (2012), https://ec.europa.eu/jrc/sites/jrcsh/files/natech-leaflet.pdf [hereinafter European Comm’n, Natechs].

8 See Jeff D. Colgan, Harvey Caused a Chemical Plant Explosion. Is that the Next Face of Climate Change?, Wash. Post (Sept. 6, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/09/06/harvey-caused-a-chemical-plant-explosion-is-that-the-next-face-of-climate-change; see also infra section I.B.

9 See Steven Mufson & Darryl Fears, Wind, Rain and a Chemical Fire. Hurricane Laura Was Gone But the Crisis Wasn’t Over., Wash. Post (Aug. 27, 2020), https://www.washingtonpost.com/climate-environment/2020/08/27/hurricane-laura-fire-biolab.

10 Jeff Johnson, US Chemical Safety Board Remains Short-Staffed, Chem. & Eng’g News (May 4, 2020), https://cen.acs.org/safety/industrial-safety/US-Chemical-Safety-Board-remains/98/web/2020/05.

11 Bruce Rolfsen, Senate Confirms New Chair for Chemical Investigation Board, Bloomberg Law (Mar. 24, 2020), https://news.bloomberglaw.com/bloomberg-law-news/senate-confirms-new-chair-for-chemical-investigation-board; see also Tom Conway, Why is Trump Trying to Kill a Small Agency With a Big Impact on Public Safety?, Nation of Change (Feb. 28, 2020), https://www.nationofchange.org/2020/02/28/why-is-trump-trying-to-kill-a-small-agency-with-a-big-impact-on-public-safety.

12 Jim Morris & Andrew Maykuth, The U.S. Chemical Safety Board Was Slashed By Trump. Its Backlog is Piling Up., Ctr. for Pub. Integrity (Mar. 26, 2021), https://publicintegrity.org/environment/chemical-safety-agency-backlog-refinery-explosion.

13 See infra section II.B.

14 See infra note 20–22 and accompanying text.

15 Jennifer Busick, The Cost of Catastrophe: Is There a Business Case for Chemical Safety, EHS Daily Advisor (May 15, 2017), https://ehsdailyadvisor.blr.com/2017/05/cost-catastrophe-business-case-chemical-safety (finding it “relatively simple to make the case that prevention is a far more cost-effective option”); see also Fox, supra note 6 (discussing the twenty-two billion-dollar disasters of 2020).

16 Calculated by the author from the chemical incidents tracked by the CSB between 2009 and 2019. See Chem. Safety & Hazard Investigation Bd., Copy of CSB Incidents 2009-8.2019DocketPost (Dec. 12, 2019), https://www.regulations.gov/document?D=CSB-2019-0004-0023 [hereinafter Copy of CSB Incidents].

17 See Busick, supra note 15.

18 See History, CSB, https://www.csb.gov/about-the-csb/history (last visited Oct. 10, 2020).

19 See, e.g., Gary J. Edles, The Almost Accidental Start of A New Federal Agency, 47 Fed. Law. 32, 33 (2000).

20 See, e.g., Jane F. Barrett, When Business Conduct Turns Violent: Bringing BP, Massey, and Other Scofflaws to Justice, 48 Am. Crim. L. Rev. 287 (2011); Jacqueline L. Weaver, Offshore Safety in the Wake of the Macondo Disaster: The Role of the Regulator, 36 Hous. J. Int’l L. 379 (2014); Lauren Mulhern, Note, The Arkema Chemical Facility Incident: How the Regulation of Reactive Chemicals and the Incorporation of Climate Change Risks in Emergency Response Planning Could Mitigate and Prevent Future Accidental Chemical Releases, 30 Colo. Nat. Resources, Energy & Env’t L. Rev. 143 (2019).

21 See, e.g., Mark Kaszniak, Oversights and Omissions in Process Hazard Analyses: Lessons Learned From CSB Investigations, 29 Process Safety Progress 264 (2010); Mary Beth Mulcahy, Alice Young, James Gibson, Cheri Hildreth, Peter Ashbrook, Robin Izzo, & Bruce Backus, College and University Sector Response to the U.S. Chemical Safety Board Texas Tech Incident Report and UCLA Laboratory Fatality, 20 J. Chem. Health & Safety 6 (2013); Ronald J. Willey, West Fertilizer Company Fire and Explosion: A Summary of the U.S. Chemical Safety and Hazard Investigation Board Report, 49, Pt. B, J. Loss Prevention Process Indus. 132 (2017).

22 See, e.g., Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769 (2013); Daniel Richardson, Note, Congressional Control of Agency Expertise, 105 Va. L. Rev. 173 (2019).

23 See infra section II.B.1.

24 See Edles, supra note 19, at 33; Alan Taylor, Bhopal: The World’s Worst Industrial Disaster, 30 Years Later, Atlantic (Dec. 2, 2014), https://www.theatlantic.com/photo/2014/12/bhopal-the-worlds-worst-industrial-disaster-30-years-later/100864.

25 About the CSB, supra note 5.

26 Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 228, 1990 U.S.C.C.A.N. 3385, 3612 (1989); see also infra II.C.1.

27 See About the CSB, supra note 5.

28 See infra section II.C.

29 See Edles, supra note 19, at 33–34.

30 The Clean Air Act amendments contained an appropriation of $1 million for the EPA to establish the CSB. Id. No more funding was appropriated, however, once board members were nominated, not until the slow progress by OSHA and the EPA of an investigation into a New Jersey chemical incident that killed five workers prompted Sen. Frank Lautenberg of New Jersey to urge the inclusion of $4 million for the CSB into a 1998 appropriations bill. Id.

31 See CSB, Harwood Grants Back on the Chopping Block in Trump Administration FY 2021 Budget Proposal, Safety + Health, https://www.safetyandhealthmagazine.com/articles/19428-csb-harwood-grants-back-on-the-chopping-block-in-trump-administration-fy-2021-budget-proposal.

32 See EPA’s Budget and Spending, EPA, https://www.epa.gov/planandbudget/budget (last visited Sept. 19, 2020).

33 See Budget Request, U.S. Chem. Safety & Hazard Investigation Bd., 3 (2020), https://www.csb.gov/assets/1/6/justification_2020.pdf [hereinafter CSB, Budget Request FY 2020].

34 See 42 U.S.C. § 7412(r)(6) (2018); infra section II.B.2.

35 See 42 U.S.C. § 7412(r)(6)(C).

36 Id. § 7412(r)(6)(I)–(J). The Administrator should “respond by issuing the proposed regulation or order or stating why implementation of the recommendation would not be appropriate.” Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 208, 1990 U.S.C.C.A.N. 3385, 3592 (1989).

37 42 U.S.C. § 7412(r)(6)(I)–(J).

38 See Id. § 7412(r)(6)(B); Edles, supra note 19, at 33 (“The typical statute governing multi-member agencies contains no professional qualifications for membership.).

39 See Kaszniak, supra note 21, at 264–66 (describing process hazard analysis and its role in hazard prevention).

40 See Selection of Sources of Investigation Reports and Analyses of Chemical Accidents, European Comm’n, https://minerva.jrc.ec.europa.eu/en/shorturl/minerva/chemical_accident_investigation_reports (last updated Nov. 11, 2017) [hereinafter European Commission, Sources of Investigation Reports] (linking to various hazard investigation board reports); National Chemical Safety Program—Incident Investigation Reports, Mary Kay O’Connor Process Safety Ctr., http://psc.tamu.edu/resources/ncsp-reports (last visited Sept. 19, 2020) (linking to other hazard investigation agencies); infra section II.C.2.

41 Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 229–30, 1990 U.S.C.C.A.N. 3385, 3613–14 (1989).

42 Id. at 229, 1990 U.S.C.C.A.N. at 3613.

43 Id. at 229–30, 1990 U.S.C.C.A.N. at 3613–14.

44 Id.

45 CSB, Budget Request FY 2020, supra note 33, at 3.

46 See 42 U.S.C. § 7412(r)(6)(L)(ii) (2018). The courts have upheld the CSB’s subpoena powers when challenged by companies. See, e.g., United States v. Exxon Mobil Corp., 943 F.3d 1283 (9th Cir. 2019) (reversing the district court and granting the CSB’s subpoena requests under a “generous relevance standard”).

47 CSB, Budget Request FY 2020, supra note 33, at 4 (highlighting seven chemical disasters since 2010, which resulted in billions of dollars of damage).

48 Id.

49 Id.

50 Jeff Johnson, The Chemical Safety Board Faces an Uncertain Future Despite Strong Backing, Chem. & Eng’g News (Jan. 30, 2020), https://cen.acs.org/safety/industrial-safety/Chemical-Safety-Board-faces-uncertain/98/i5; see also Conway, supra note 11 (“When Trump cut the CSB out of his 2018 budget, a vice president at Tesoro, Stephen Brown, called for sparing the agency. . . . ‘I don’t think anyone in the industry wants to see the Chemical Safety Board be abolished’, . . . .”).

51 See Scott Jensen, ACC Expresses Support for Chemical Safety Board and Urges Congress and White House to Fill Board Vacancies, Am. Chem. Council (Jan. 29, 2020), https://www.americanchemistry.com/Media/PressReleasesTranscripts/ACC-news-releases/ACC-Expresses-Support-for-Chemical-Safety-Board.html (expressing support for the CSB and urging nominations to the board).

52 Of the thirteen American headquartered companies in the top fifty chemical producers, the ACC represents ten. Compare Member Companies, Am. Chem. Council, https://www.americanchemistry.com/Membership/MemberCompanies (last visited Oct. 16, 2020) (listing ACC membership) with Alexander H. Tullo, C&EN’s Global Top 50 Chemical Companies of 2018, Chem. & Eng’g News (Jul. 29, 2019), https://cen.acs.org/business/finance/CENs-Global-Top-50-chemical/97/i30 (listing the top fifty chemical producers by sales).

53 Stakeholder Perspectives on the Importance of the U.S. Chemical Safety and Hazard Investigation Board Before the S. Comm. on Env’t & Pub. Works, 116th Cong. __, 21 (2020), https://www.epw.senate.gov/public/index.cfm/hearings?ID=AC86E1F2-3A8A-473E-80BB-7F338CAC16F6#RelatedFiles [hereinafter Hearing on CSB Stakeholder Perspectives] (statement of Shakeel Kadri, Exec. Dir., Ctr. for Chem. Process Safety, Am. Inst. of Chem. Eng’rs)).

54 See, e.g., Jeff Johnson, Former US Chemical Safety Board Member Kristen Kulinowski Reflects on her Term, Chem. & Eng’g News (June 21, 2020), https://cen.acs.org/safety/industrial-safety/Former-US-Chemical-Safety-Board-member-Kristen-Kulinowski-reflects-on-her-term/98/i24 [hereinafter Johnson, Kristen Kulinowski Reflects] (“The board’s investigation findings frequently raise the ire of regulators, industrial companies, and a host of other bodies that are responsible for maintaining safe workplaces.”)

55 George Zornick, Why Does Trump Want to Stop Investigating Chemical Accidents, The Nation (Mar. 23, 2017), https://www.thenation.com/article/archive/why-does-trump-want-to-stop-investigating-chemical-accidents.

56 See European Comm’n, Natechs, supra note 7.

57 See infra section I.C.

58 Fact Sheet, U.S. Chem. Safety & Hazard Investigation Bd., https://www.csb.gov/assets/1/6/csb_fact_sheet.pdf [hereinafter CSB, Fact Sheet] (last visited Oct. 12, 2020); see also Joseph M. Schreiber, Vorys Sater Seymour and Pease LLP, Working With the Chemical Safety Board After a Major Accident (July 7, 2012), https://www.lexology.com/library/detail.aspx?g=b130e65a-e1f7-4ece-a7f7-2ea8432fb52f (describing what to do when CSB agents arrive, “CSB and its outside experts will be professional, learned, and tenacious. . . . They will want documents, safety videos, procedure manuals, proof that employees have read and signed the procedure manuals, and access to employees to conduct interviews. CSB has subpoena power and will use it.”).

59 CSB, Fact Sheet, supra note 58.

60 Id.

61 Id.

62 Andrea Giampetro-Meyer & Nancy Kubasek, Harvey: Environmental Justice and Law, 31 Fordham Env’t. L. Rev. 37, 37 (2020).

63 Id. at 37–38.

64 Id. at 41–42.

65 See Correa, supra note 66, at 52–53 & nn. 112–19 (discussing the Arkema disaster through citations to the CSB’s investigation); Mulhern, supra note 20, at 147–51 & nn. 10–55 (same).

66 See Melissa Correa, There Are Around 3,000 Registered Facilities that House Chemicals in Harris County. Which Ones Are Near You?, KHOU (Jan. 24, 2020), https://www.khou.com/article/news/local/there-are-around-3000-registered-facilities-that-house-chemicals-in-harris-county-which-ones-are-near-you/285-8e855b40-5e29-4740-8c8c-046a522f7453.

67 Id.; see also @jschanna, Self Accelerating Decomposition Temperature, YouTube (Nov. 2, 2008), https://youtu.be/98jOeCr06Xs.

68 CSB, Organic Peroxide Decomposition, Release, and Fire at Arkema Crosby Following Hurricane Harvey Flooding 10 (2018), https://www.csb.gov/arkema-inc-chemical-plant-fire- [hereinafter CSB, Arkema Investigation Report].

69 Id.

70 Id.

71 Id.

72 Id.

73 Id.

74 Id. at 12–13.

75 Id.

76 Id.

77 Walter D. James, III, Climate Change Consequences in the Here and Now: Arkema, Inc. and Hurricane Harvey (Sept. 20, 2019), https://www.americanbar.org/groups/business_law/publications/committee_newsletters/environmental/2019/201909/fa_2; see also Short Wave, Fueled By Climate Change, Hurricanes Are Causing Industrial Accidents. Who’s Liable, NPR (Sept. 29, 2020), https://www.npr.org/2020/09/25/916862969/fueled-by-climate-change-hurricanes-are-causing-industrial-accidents-whos-liable (discussing the Arkema incident and legal consequences in a podcast and interviewing scientists, Harris County attorneys, and Arkema’s attorneys).

78 Samantha Ketterer, High-Profile Arkema Trial Ends with no Convictions as Harris County Judge Acquits Final Defendants (Oct. 1, 2020), https://www.houstonchronicle.com/news/houston-texas/crime/article/Arkema-trial-judge-defendants-no-convictions-15612235.php (last updated Oct. 2, 2020).

79 See Consolidated Plaintiff’s First Amended Complaint at 12, Graves v. Arkema Inc., No. 4:17-cv-03068 (S.D. Tex. Aug. 26, 2019).

80 See Order of Multidistrict Litigation Panel, In re Arkema Inc. Litig., 2020 Tex. LEXIS 839 (July 10, 2020).

81 CSB, Arkema Investigation Report, supra note 68, at 8–128.

82 The CSB uses the European Commission definition of a natech, “a technological disaster triggered by any type of natural disaster.” Id. at 122, n.a.

83 CSB, Arkema Investigation Report, supra note 68, at 98, 126–27; see also Recommendations, CSB, https://www.csb.gov/recommendations/?F_InvestigationId=3594 (last visited Oct. 15, 2020) (tracking the Arkema recommendations).

84 CSB, Arkema Investigation Report, supra note 68, at 126.

85 Id. at 101–02, 126.

86 U.S. Chem. Safety & Hazard Investigation Bd., Recommendations Status Change Summary, Improving Reactive Hazard Management 1–3 (2014), https://www.csb.gov/assets/recommendation/status_change_summary-_reactives_r3.pdf [hereinafter CSB, Improving Reactive Hazard Management Recommendation] (discussing the reasons why the EPA response to the CSB’s hazard reporting recommendation is unacceptable).

87 Id. at 102.

88 See infra section II.A.

89 CCPS Monograph: Assessment of and Planning For Natural Hazards, Ctr. for Chem. Process Safety (2019), https://www.aiche.org/sites/default/files/html/536181/NaturalDisaster-CCPSmonograph.html. The CSB was able to put out a safety alert before the 2020 hurricane season recommending chemical facilities heed the new guidelines. U.S. Chem. Safety & Hazard Investigation Bd., 2020 Hurricane Season: Guidance for Chemical Plants During Extreme Weather Events 1 (2020), https://www.csb.gov/assets/1/6/extreme_weather_-_final_w_links.pdf.

90 The CSB compared flood planning guidance from the United Kingdom Environment Agency to United States’ based sources and concluded that there is a lack of robust flood risk guidance available to industry in the United States. CSB, Arkema Investigation Report, supra note 68, at 88–98. The suggested guidance included addressing common-mode failures of critical safeguards that could be caused by extreme weather events, evaluating facility susceptibility to extreme weather events, and bringing professional disciplines together for extreme weather risk assessments. Id. at 172.

91 U.S. Chem. Safety & Hazard Investigation Bd., Recommendations Status Change Summary, Arkema, Inc. Chemical Plant Fire (Recommendation 2), at 1 (2020), https://www.csb.gov/assets/recommendation/status_change_summary__arkema_inc_(arkema_r2)__c-aa.pdf.

92 U.S. Chem. Safety & Hazard Investigation Bd., Recommendations Status Change Summary, Arkema, Inc. Chemical Plant Fire (Recommendation 5), at 2 (2019), https://www.csb.gov/assets/recommendation/status_change_summary__harris_county_(arkema_r5)__o-arar.pdf. The CSB found that training could have prevented the personnel who policed the Arkema evacuation perimeter from being exposed to noxious chemical smoke. CSB, Arkema Investigation Report, supra note 68, at 127.

93 Int’l Fed’n of Red Cross & Red Crescent Soc’ys, World Disasters Report 2020, Come Heat or High Water 19, 90 (2020), https://media.ifrc.org/ifrc/wp-content/uploads/2020/11/20201116_WorldDisasters_Full.pdf [hereinafter IFRCS, World Disasters Report 2020]; see also Nick Watts et al, The 2020 Report of The Lancet Countdown on Health and Climate Change: Responding to Converging Crises, The Lancet, Dec. 2, 2020, at 1, 2, 7–8, 23, 34, 36 (reviewing the health burden from climate change including millions of deaths and billions of work-hours lost).

94 Int’l Fed’n of Red Cross & Red Crescent Soc’ys, supra note 93, at 19, 94.

95 Han Li, Climate Change Isn’t Material?: How People of the State of New York v. Exxon Mobil Corporation Highlights the Need for Mandatory Greenhouse Gas Emission Disclosures, Minn. L. Rev. De Novo Blog (Apr. 26, 2020), https://minnesotalawreview.org/2020/04/26/climate-change-isnt-material-how-people-of-the-state-of-new-york-v-exxon-mobil-corporation-highlights-the-need-for-mandatory-greenhouse-gas-emission-disclosures; see also NOAA, supra note 6 (“The U.S. has sustained 285 weather and climate disasters since 1980 where overall damages/costs reached or exceeded $1 billion (including CPI adjustment to 2020). The total cost of these 285 events exceeds $1.875 trillion.”).

96 See World Health Org., Public Health Impact of Chemicals: Knowns and Unknowns 6 (2016), https://www.who.int/publications/i/item/WHO-FWC-PHE-EPE-16.01-eng.

97 World Health Org., Chemical Releases Cause by Natural Hazard Events and Disasters 2 (2018), https://apps.who.int/iris/bitstream/handle/10665/272390/9789241513395-eng.pdf.

98 Id.

99 See Scientific Consensus: Earth’s Climate is Warming, NASA, https://climate.nasa.gov/scientific-consensus (last updated Nov. 5, 2020).

100 See Elisabeth Krausmann, Serkan Girgin & Amos Necci, Natural Hazard Impacts on Industry and Critical Infrastructure: Natech Risk Drivers and Risk Management Performance Indicators, Int’l J. Disaster Risk Reduction, Nov. 2019, at 1, 2 (“Where there are no legal obligations for reporting accidents, information will be unavailable for learning lessons.”). One article showed that although pipeline accidents decreased overall, the number attributable to natech events remained stable and were much more severe than other incidents. Id.

101 See Ana Maria Cruz, Laura J. Steinberg, Ana Lisa Vetere Arellano, Jean-Pierre Nordvik & Francesco Pisano, State of the Art In Natech Risk Management 2 (2004), https://www.unisdr.org/files/2631_FinalNatechStateofthe20Artcorrected.pdf

102 See IFRCS, World Disasters Report 2020, supra note 93, at 51–83.

103 The interactions between climate change and extreme weather events, such as hurricanes, storms, droughts, floods, heatwaves, and wildfires, are complicated, but scientists have developed methods of “extreme event attribution” that allow researchers to determine how much climate change increased the risk of an extreme weather event occurring. Chelsea Harvey, Scientists Can Now Blame Individual Natural Disasters on Climate Change, Scientific American (Jan. 2, 2018), https://www.scientificamerican.com/article/scientists-can-now-blame-individual-natural-disasters-on-climate-change (“[W]hat scientists can do is investigate the extent to which climate change has influenced a given event.”); see also Comm. on Extreme Weather Events and Climate Change Attribution, Nat’l Academies of Scis. Eng’g Med., Attribution of Extreme Weather Events in the Context of Climate Change 23 (2016), https://www.nap.edu/read/21852 (“[I]t is now possible in some cases to provide quantitative information about how climate change may have impacted the probability or intensity of an individual event and to cast this within a probabilistic causal framework.”). On the science of climate change attribution in the law, see generally, Michael Burger, Jessica Wentz & Radley Horton, The Law and Science of Climate Change Attribution, 45 Colum. J. Envtl. L. 57, 63 (2020) (“This Article offers a comprehensive, of-the-moment survey of the roles attribution science plays in climate change law and litigation.”).

104 IFRCS, World Disasters Report 2020, supra note 93, at 38.

105 See Marleen C. de Ruiter, Anaïs Couasnon, Marc J. C. van den Homberg, James E. Daniell, Joel C. Gill & Philip J. Ward, Why We Can No Longer Ignore Consecutive Disasters, Earth’s Future, Mar. 2020, at 1, 6 (“[C]ountries did recognize the relation between the increased potential of Natech events and their impacts, and the effects of climate change.”).

106 Krausmann et al., supra note 100, at 4–5.

107 Id.; see also The Seveso Directive—Summary of Requirements, European Comm’n, https://ec.europa.eu/environment/seveso/legislation.htm (last updated Sept. 14, 2020).

108 Krausmann et al., supra note 100, at 5.

109 See supra notes 85–87 and accompanying text.

110 CSB, Arkema Investigation Report, supra note 68, at 98.

111 See supra notes 89–90 and accompanying text.

112 See Bio Lab Chemical Fire and Release, CSB (Aug. 27, 2020), https://www.csb.gov/bio-lab-chemical-fire-and-release-; see also, Tristan Baurick, Chemical Fire Near Lake Charles Finally Out After 3 Days; Investigation Into Cause Begins (Aug. 31, 2020), https://www.nola.com/news/environment/article_6227ac8a-ebbc-11ea-92f2-67f719ac6c7c.html.

113 Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 209, 1990 U.S.C.C.A.N. 3385, 3593 (1989).

114 See Edles, supra note 19, at 33–34.

115 See Conway, supra note 11.

116 See supra notes 18–22 and accompanying text.

117 See generally infra section II.B.1 (discussing how the CSB’s chronic lack of funding has prevented it from investigating the vast majority of accidents within its statutory duties).

118 The EPA has less often accepted the CSB’s recommendation. See infra notes 134-139 and accompanying text. The CSB’s frequently asked questions include, “Do recipients follow CSB recommendations?” To which CSB responded, “Yes. Although CSB recommendations are not mandatory, they provide realistic and effective solutions for protecting environmental and workplace safety and health. Recipients generally understand that complying with CSB recommendations can help prevent similar incidents.” Frequently Asked Questions, CSB, https://www.csb.gov/recommendations/faq/#do-recipients-follow-csb-recommendations (last visited Oct. 16, 2020).

119 Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 208, 1990 U.S.C.C.A.N. 3385, 3592 (1989) (“The Board has the power to compel testimony and inspect facilities in the conduct of its accident investigations. . . . The Board may make recommendations to the Administrator of the Environmental Protection Agency for action to prevent or mitigate chemical hazards, either through regulation or by the issuance of administrative orders.”)

120 See Recommendations, CSB, https://www.csb.gov/recommendations (last visited Sept. 19, 2020) [hereinafter CSB, Recommendations] (tracking each safety recommendation made by the CSB).

121 See Investigations, CSB, https://www.csb.gov/investigations (last visited Jan. 13, 2021).

122 Frequently Asked Questions, CSB, https://www.csb.gov/recommendations/faq/#what-do-the-status-designations-for-each-recommend [hereinafter CSB, Status Designations] (last visited Oct. 16, 2020).

123 In 2015, the CSB did a follow-up survey of 10% of the recommendations it closed between 2009 and 2014 and found that every one of its recommendations surveyed was still in effect. See Veronica Tinney, Closed Recommendations Follow-Up Report 7 tbl.1 (2015), https://www.csb.gov/assets/1/6/qq_survey_2015_final_9-24-2015_(2)1.pdf.

124 See CSB, Recommendations, supra note 120.

125 See id. The data was taken from the CSB recommendations tracker.

126 See id. Additionally, there are twenty-one recommendations that are open with an unacceptable response. These are recommendations for which no acceptable planned response has been received within 270 days from CSB making the recommendation. The CSB believes, however, the recommendee will act after further dialogue or advocacy. CSB, Status Designations, supra note 122.

127 See U.S. Chem. Safety & Hazard Investigation Bd., Key CSB Successes 1, https://www.csb.gov/assets/1/6/csb_key_successes.pdf [hereinafter CSB, Key Successes] (last visited Nov. 14, 2020); see also Faced With Elimination, Chemical Safety Board Highlights Its Responsibilities, Safety + Health (Mar. 27, 2017), https://www.safetyandhealthmagazine.com/articles/15497-faced-with-elimination-chemical-safety-board-highlights-its-responsibilities.

128 See CSB, Key Successes, supra note 127. Between 1980 and 2005, dust explosions killed 119 and injured 718 workers. U.S. Chem. Safety & Hazard Investigation Bd., Investigation Report, Combustible Dust Hazard Study 1 (2006), https://www.csb.gov/combustible-dust-hazard-investigation.

129 See Benjamin D. Briggs, Brent I. Clark, Adam R. Young, Matthew A. Sloan & Craig B. Simonsen, Updated Combustible Dust NFPA Industry Consensus Standard Gives OSHA New Tool to Cite Employers: Does Your Facility Comply?, Env’t Safety Update (Apr. 26, 2019), https://www.environmentalsafetyupdate.com/osha-compliance/updated-combustible-dust-nfpa-industry-consensus-standard-gives-osha-new-tool-to-cite-employers-does-your-facility-comply.

130 Holly Demaree-Saddler, US Grain Dust Explosion Decline in 2019 (Mar. 5, 2020), https://www.world-grain.com/articles/13368-us-grain-dust-explosions-decline-in-2019.

131 See CSB, Key Successes, supra note 127.

132 See 42 U.S.C. § 7412(r) (2018).

133 See Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 229–30, 1990 U.S.C.C.A.N. 3385, 3613–14 (1989).

134 See CSB, Recommendations, supra note 120.

135 See CSB, Recommendations, Recipient: EPA, https://www.csb.gov/recommendations/?F_RecipientId=4846 [hereinafter CSB, EPA Recommendations] (last visited Oct. 17, 2020).

136 See id.

137 See id. (“Ensure that the emergency response planning required for permitted hazardous waste treatment, storage, and disposal facilities (40 CFR 264.37) includes providing written information to state and local emergency response officials on the type, approximate quantities, and locations of materials within the facility . . . .”)

138 See id.; U.S. Chem. Safety & Hazard Investigation Bd., Interim Investigation Report: Chevron Richmond Refinery Fire 56 (2012), https://www.csb.gov/chevron-refinery-fire.

139 See id.

140 See CSB, Recommendations, Recipient: OSHA, https://www.csb.gov/recommendations/?F_RecipientId=4884 [hereinafter CSB, OSHA Recommendations] (last visited Oct. 18, 2020). There are, however, seven open responses listed as “Unacceptable Response/No Response Received.” Id.

141 See id.

142 See id.

143 See About the CSB, supra note 5. The CSB’s data shows the number of chemical incidents and fatalities in the United States is trending down, although the data is statistically insignificant and cannot necessarily be attributed to the CSB’s work. See infra Figure 1.

144 See infra section II.B.1.

145 Off. of Inspector Gen., U.S. Env’t Prot. Agency, FY 2016 U.S Chemical Safety and Hazard Investigation Board Management Challenges 3 tbl.1 (2016), https://www.epa.gov/office-inspector-general/report-csbs-fiscal-year-2016-management-challenges [hereinafter OIG, CSB Management Challenges FY 2016].

146 42 U.S.C. § 7412(r)(6)(C)(i) (2018) (“The Board shall– (i) investigate (or cause to be investigated), determine and report to the public in writing the facts, conditions, and circumstances and the cause or probable cause of any accidental release resulting in a fatality, serious injury or substantial property damages . . . .”).

147 OIG, CSB Management Challenges FY 2016, supra note 145, at 3–4 (“42 U.S.C. § 7412(r)(6) is not ambiguous with regard to the issue of the scope of cases to be investigated, stating that CSB ‘shall’ investigate.” (citing City of Arlington, Tex. v. F.C.C., 569 U.S. 290 (2013))).

148 Id.

149 See Morris & Maykuth, supra note 12.

150 See 42 U.S.C. § 7412(r)(6)(C)(iii), 7412(r)(6)(Q).

151 See Comment Sought on Reporting Accidental Chemical Releases to the Chemical Safety Board, 19 Air Pollution Consultant 2.67 (2009) [hereinafter CSB, Comment Sought].

152 Air All. Houston v. U.S. Chem. & Safety Hazard Investigation Bd., 365 F. Supp. 3d 118, 131 (D.D.C. 2019), appeal dismissed sub nom. Pub. Employees for Envtl. Responsibility v. U.S. Chem. Safety & Hazard Investigation Bd., No. 19-5089, 2019 WL 4565521 (D.C. Cir. Aug. 26, 2019).

153 Id. at 121, 132 (calling the CSB’s defense “half-hearted”).

154 See Accidental Release Reporting, 85 Fed. Reg. 10,074, 10,074 (Feb. 21, 2020) (to be codified at 40 C.F.R. pt. 1604).

155 See supra note 152.

156 Robin Bravender, Chemical Safety Board ‘The Agency is Broken. It Needs to be Rebuilt’– Former CSB Member, E&E News (June 20, 2014), https://www.eenews.net/stories/1060001714.

157 OIG, CSB Management Challenges FY 2016, supra note 145, at 1; see also, Staff of U.S. H. of Reps., 113th Cong., Whistleblower Reprisal and Management Failures at the U.S. Chemical Safety Board 7 (2014), https://republicans-oversight.house.gov/wp-content/uploads/2014/06/CSB-FINAL-REPORT-Redact-version.pdf (“The mission of CSB is to investigate chemical accidents . . . and ensure that its recommendations are implemented. Moure-Eraso’s leadership style—which includes an utter disregard for the collegial tradition of the Board—drove away all the experienced investigators, effectively rendering the CSB unable to issue any recommendations and fulfill its mission.”).

158 Staff of U.S. H. of Reps., 113th Cong., supra note 157, at 7.

159 See Staff of U.S. H. of Reps., 113th Cong., supra note 157, at 5.

160 Id. at 16–24.

161 Id. at 42–50.

162 Id. at 60–61.

163 See Kevin Bogardus & Corbin Hiar, Trump DOJ Passes on Perjury Prosecution of Ex-Chairman, E&E News (Feb. 8, 2018), https://www.eenews.net/greenwire/2018/02/08/stories/1060073315 (listing a timeline of the Moure-Eraso investigation).

164 See, e.g., Hearing on CSB Stakeholder Perspectives, supra note 53 (testifying to the CSB’s value to both the chemical industry and workers’ unions); CSB, Key Successes, supra note 128 (detailing six key recommendations).

165 See infra Figure 1.

166 See supra section II.A.

167 See supra section I.B.2.

168 See CSB, Comment Sought, supra note 151, at 2.67 (“The CSB indicates that media reports are the sole source of information for approximately two-thirds of screened incidents.”). The European Commission gave the CSB a two on a scale of five for its accident information coverage, which was average for the databases it ranked. See M. Wood, M. Hailwood, Z. Gyenes, L. Allford, Chemical Accident Risks in Europe and Beyond—Where Are We Now? (2017), https://www.unece.org/fileadmin/DAM/env/documents/2016/TEIA/OECD_WGCA_24-27_OCT_2016/Maureen_Wood_EU_27_Oct_OECD_JRC_Oct2016_2_Seminar.pdf.

169 See Welcome to the National Response Center, U.S. Coast Guard, http://nrc.uscg.mil.

170 See Accidental Release Reporting, supra note 154, at 10,081. The Bureau of Labor Statistics also reports accidents that result in injury to workers. See Chemical Manufacturing: NAICS 325, U.S. Bureau of Labor Stats., https://www.bls.gov/iag/tgs/iag325.htm (last updated Oct. 15, 2020).

171 See, e.g., CSB, Arkema Investigation Report, supra note 68, at 98–101 (comparing the United States flood risk regulatory approach to the EU approach); id. at 107–09 (discussing the International Atomic Energy Agency’s investigation of the Fukushima nuclear disaster caused by an earthquake and tsunami).

172 Others have done this for various chemical statutory regimes. See, e.g., Adam D.K. Abelkop & John D. Graham, Regulation of Chemical Risks: Lessons for Reform of the Toxic Substances Control Act from Canada and the European Union, 32 Pace Envtl. L. Rev. 108, 110–11 (2015) (discussing how the U.S. Toxic Substances Control Act is outdated when compared with Canada, the EU, Japan, China, and South Korea); Maryam Tabatabai, Comparing U.S. and EU Hazardous Waste Liability Frameworks: How the EU Liability Directive Competes with CERCLA, 34 Hous. J. Int'l L. 653, 660–62 (2012) (comparing the U.S. hazardous waste regulatory frameworks with those in the EU).

173 See Eric Fielding, Andrew W. Lo & Jian Helen Yang, The National Transportation Safety Board: A Model for Systemic Risk Management 1 (Nov. 14, 2020) (unpublished manuscript), http://ssrn.com/abstract=1695781 (“With its reputation for independence and objectivity, the NTSB is widely regarded as an authoritative voice in transportation safety, and one of the most admired agencies in the federal government.”); Jeff Johnson, CSB Seeks Small Budget Increase (Mar. 12, 2012), https://cen.acs.org/articles/90/i11/CSB-Seeks-Small-Budget-Increase.html.

174 Schreiber, supra note 58.

175 National Transportation Safety Board and Chemical Safety and Hazard Investigation Board—Memorandum of Understanding, Av. L. Rep. 23,933 (Dec. 19, 2002), 2015 WL 8452813.

176 See id.

177 Id.

178 U.S. Gov’t Accountability Office, Chemical Safety Board: Improvements in Management and Oversight Are Needed 6 (Aug. 22, 2008), https://www.gao.gov/new.items/d08864r.pdf.

179 Id. The CSB has the statutory authority to use information gathered by others but does not. Id.

180 Fielding et al., supra note 173, at 1.

181 Id. at 6.

182 Id. at 10. Each specialist in the Go Team heads a subcommittee filled by the accident investigation’s external parties and internal members. Id.

183 See European Commission, Sources of Investigation Reports, supra note 40.

184 Id.

185 See Johnson, The Uneven World, supra note 2 (“Our investigations can lead to legal proceedings against the company, and investigations are a key part of our regulatory system . . . . I am reluctant to separate accident investigation from regulations. Big accidents, like those . . . in the U.S. . . . are extremely rare in the U.K. and are investigated by special commission.”

186 42 U.S.C. § 7412(r)(6)(G) (2018) (“No part of the conclusions, findings, or recommendations of the Board relating to any accidental release or the investigation thereof shall be admitted as evidence . . . .”).

187 See The Joint Research Centre’s Major Accident Hazards Bureau, European Commission, https://minerva.jrc.ec.europa.eu/EN/content/minerva/c76dfa82-97a9-435f-8e0e-39a435aeec3a/who_we_are [hereinafter JRC, Major Accident Hazards Bureau] (last updated Oct. 13, 2020); The Seveso Directive—Technological Disaster Risk Reduction, European Commission, https://ec.europa.eu/environment/seveso (last updated Jan. 29, 2020).

188 JRC, Major Accident Hazards Bureau, supra note 187 (emphasis removed).

189 Maureen Heraty Wood & Luciano Fabbri, Challenges and Opportunities For Accessing Global Progress in Reducing Chemical Accident Risks, 4 Progress in Disaster Science 100,044, at 3 (2019) (“As a whole, there are very little publicly available data on chemical accidents worldwide. . . . [A]n official international database for analysing global chemical accident trends does not exist and is unlikely to be established any time soon. Relatively few countries and industry organisations around the world maintain dedicated chemical accident databases . . . .”).

190 About SHK, Swedish Accident Investigation Authority, https://www.havkom.se/en/om-shk (last visited Oct. 18, 2020).

191 Role and Function, Safety Investigation Authority, https://www.turvallisuustutkinta.fi/en/index/otkes.html [hereinafter SIA, Role and Function] (last visited Oct. 18, 2020).

192 About the Board, Dutch Safety Board, https://www.onderzoeksraad.nl/en/page/12263/dutch-safety-board (last visited Oct. 18, 2020).

193 See European Commission, Sources of Investigation Reports, supra note 40 (listing all known sources of investigation reports).

194 See Swedish Accident Investigation Authority, Annual Report 8–28 (2019), https://www.havkom.se/assets/reports/%C3%A5rsredovisningar/SHK-annual-report-2019.pdf.

195 Industrial, Safety Investigation Authority, https://www.turvallisuustutkinta.fi/en/index/tutkintaselostukset/other/tutkintaselostuksetaihealueittain/industrial.html (last visited Oct. 20, 2020).

196 See Investigation Reports, Health and Safety Executive, https://www.hse.gov.uk/comah/investigation-reports.htm (last visited Oct. 18, 2020) (showing that no investigation report has been made by the COMAH Competent Authority since 2005).

197 See Investigating Accidents and Incidents, Health and Safety Executive (2004), https://www.hse.gov.uk/pubns/hsg245.pdf (giving a step-by-step guide for businesses to carry out their own health and safety investigations).

198 See Investigation Reports by Field, Safety Investigation Authority, https://www.turvallisuustutkinta.fi/en/index/tutkintaselostukset/other/tutkintaselostuksetaihealueittain.html [hereinafter SIA, Investigation Reports by Field] (last visited Oct. 18, 2020).

199 Dutch Safety Board, supra note 192.

200 Sweden Accident Investigation Authority, Investigation Process, https://www.havkom.se/en/om-shk/utredningsarbetet (last visited Oct. 18, 2020).

201 Id.

202 42 U.S.C. § 7412(r)(2)(A) (2018).

203 Memorandum from the Robert L. Ashbaugh, Assistant Inspector Gen., Dep’t of Homeland Sec., to Carolyn W. Merritt, Chairman/CEO, U.S. Chem. Safety & Hazard Investigation Bd. (Jan. 7, 2004), https://www.oig.dhs.gov/sites/default/files/assets/Mgmt/OIG_04_04_CSB_Continuing_Development.pdf.

204 See id.; Accidental Release Reporting, 85 Fed. Reg. 10,074 (Feb. 21, 2020) (to be codified at 40 C.F.R. pt. 1604).

205 See The Biden Plan for a Clean Energy Revolution and Environmental Justice, Biden Harris, https://joebiden.com/climate-plan (last visited Nov. 18, 2020).

206 Id; see also infra section I.C.

207 Cary Funk & Brian Kennedy, How Americans See Climate Change and the Environment in 7 Charts, Pew Research Ctr. (Apr. 21, 2020), https://www.pewresearch.org/fact-tank/2020/04/21/how-americans-see-climate-change-and-the-environment-in-7-charts (“Two-thirds of U.S. adults say the federal government is doing too little to reduce the effects of global climate change.”).

208 See id. (“Compared with a decade ago, more Americans say protecting the environment and dealing with global climate change should be top priorities for the president and Congress.”).

209 See supra notes 145–155 and accompanying text (“The 2016 report of the EPA OIG found that the CSB has not investigated at least 90% and as high as 98% of accidents with fatalities in the prior five years.”).

210 See OIG, CSB Management Challenges FY 2016, supra note 145.

211 See Accidental Release Reporting, 85 Fed. Reg. 10,074, 10,086.

212 Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 208–09, 1990 U.S.C.C.A.N. 3385, 3592–93 (1989) (“The Board is not a regulatory agency, but is to function as a source of expertise at the center of the chemical accident prevention and response programs of the Federal Government. . . . The Board may also serve as a point of communication among the various Federal agencies . . . .”).

213 See supra notes 188–189 and accompanying text.

214 See supra section I.C.

215 See, e.g., CSB, Arkema Investigation Report, supra note 68, at 101, 107.

216 42 U.S.C. § 7412(r)(2)(A) (2018).

217 See United States v. Transocean Deepwater Drilling, Inc., 767 F.3d 485, 496 (5th Cir. 2014) (holding a dynamically positioned vessel is a stationary source).

218 See Dutch Safety Board, supra note 192.

219 See SIA, Investigation Reports by Field supra note 198.

220 For example, the CSB could investigate chemical tank leaks, such as one that caused a massive fish kill and has the potential to contaminate drinking water. See Laurence Hammack, Recovery on Tinker Creek Could Take Years After Chemical Spill Caused Massive Fish Kill, Roanoke Times (Aug. 2, 2017), https://roanoke.com/news/local/recovery-on-tinker-creek-could-take-years-after-chemical-spill-caused-massive-fish-kill/article_bccca221-729f-56dc-ab79-5b2987763086.html (“It took just a few hours for a chemical spill to cause what is believed to be one of the worst fish kills ever recorded in Virginia.”).

221 See supra section I.A.1; see also Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 229, 1990 U.S.C.C.A.N. 3385, 3613 (1989) (“[I]t is unlikely that an agency charged both with rule-making and investigating functions would be quick to acknowledge that existing requirements were insufficient to prevent an accident.”).

222 See supra section II.A.

223 42 U.S.C. § 7412(r)(6)(I)–(J) (2018).

224 Id.

225 For example, admitting that a statute’s general duty clause is not as “easy to apply as a regulation” would be, but still refusing to adopt regulations. See Letter from Mathy Stanislaus, Assistant Admin., Env’t Prot. Agency to Rafael Moure-Eraso, Chairperson, U.S. Chem. Safety & Hazard Investigation Bd. 2 (Jun. 6, 2014), https://foiaonline.gov/foiaonline/api/request/downloadFile/CSB%20Response%20Signed%206-6-14%20AX-14-000-7844.pdf/9d76a9d2-4344-4a5d-ac43-a90c8c51a418.

226 Data from the CSB’s public docket. See Copy of CSB Incidents, supra note 16.

Additional information

Notes on contributors

Ian Bennett

Ian Bennett will graduate from Columbia Law School in 2022 and holds a B.Eng in Chemical Engineering from McGill University. At Columbia, he serves as a Managing Editor of the Columbia Law Review and works for Columbia’s Environmental Law Clinic. Ian was the winner of the New York Bar Association’s Environmental & Energy Law Section 2021 Professor William R. Ginsberg Memorial Essay Contest. Following law school, Ian will join the Intellectual Property Group of Morrison & Foerster LLP in Palo Alto, CA (Linked In: https://www.linkedin.com/in/ianbennett4/).