United States: 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 would “further 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 approaches:

  1. Requiring reporting of information on all accidental releases subject to the CSB’s investigatory jurisdiction.
  2. Requiring reporting of basic information for incidents that meet significant consequence thresholds.
  3. Requiring owners or operators of certain high-risk facilities to report more extensive information on chemical incidents in their workplace after notification by the CSB following an accident.
  4. Requiring reporting based on the presence or release of specified chemicals and specified threshold amounts.5

Who Might Be Regulated?

The Clean Air Act requires that CSB reporting requirements be binding on all entities subject to the CSB’s investigation jurisdiction. Thus, the CSB rule would cover a wide range of entities, including power plants, refineries, chemical manufacturers, and owners and operators of other industrial facilities. The Board clarified in 2009, however, that it would focus on “high-consequence events,” that is, those that result in death, serious injuries requiring in-patient hospitalization, large public evacuations, very substantial property damage or acute environmental impact.6 Nevertheless, the CSB also acknowledged that releases of “small amounts of chemicals” and unlisted chemicals can result in serious consequences and could be subject to reporting requirements.7

Likely Scope of New Reporting Requirements

Reporting obligations, at the very least, could require identifying the location, date and time of incidents involving chemical releases, the chemicals involved and the number of injuries.8 Upon receiving this information, the Board would consider investigating the event and making subsequent recommendations.

In addition, the CSB noted that it may seek to limit the scope of reporting requirements in several key ways to reduce regulatory burdens and the CSB’s oversight costs. These include:

  • Coordination with other chemical incident reporting requirements to avoid duplication with existing rules by EPA, the Occupational Safety and Health Administration, and the Agency for Toxic Substances and Disease Registry.
  • Reporting thresholds that limit reporting requirements to select, high-consequence events totaling, at most, a few hundred incidents throughout the country each year.
  • Clarification of key terms, including “ambient air,” “extremely hazardous substance,” “serious” injury and “substantial” property damage.
  • submissions via the CSB website or the National Response Center hotline, as contemplated by the Clean Air Act.9

Despite these limitations, the extent of additional compliance protocols required by the rule remains uncertain.


Although the CSB has yet to comment publicly on the court’s ruling or its intentions to appeal or initiate rulemaking, the court’s 12-month deadline does not leave the Board with much time. Therefore, the Board may be without an option to release a proposed rulemaking with the opportunity for public comment by fall of this year if it has any hope of meeting this court deadline. For questions on the potential impacts of a new reporting rule or assistance with providing public comments to the CSD.


1 Air Alliance Houston, et al., v. U.S. Chemical and Safety Hazard Investigation Board, 17-cv-02608 (D.D.C. 2019), at 21.

2 Id. at 2 (quoting 42 U.S.C. § 7412(r)(6)(C)(iii)). Note that recent actions by the U.S. Environmental Protection Agency (EPA) under President Donald Trump have sought to reshape the legal conception of “ambient air” to exclude the air immediately above the confines of facilities, such as power plants, thus potentially limiting the reach of CSB reporting requirements. See, e.g., Affordable Clean Energy Rule, 83 Fed. Reg. 44746 (Aug. 31, 2018) (proposing to replace the Clean Power Plan, which would have empowered states to regulate carbon emissions outside the fence-line of existing power plants).

3 Id. at 22.

4 Chemical Release Reporting, 74 Fed. Reg. 30259, 30261 (June 25, 2009)

5 Id. at 30262.

6 Id. at 30261.

7 Id.

8 Id. at 30262.

9 Id. at 30261.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions