Audit, Compliance and Risk Blog

The federal Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB – began operations in 1998. CSB conducts independent investigations of major chemical accidents, issues accident-specific findings, and offers specific or general recommendations for improved chemical handling and regulation (I wrote about one set of proposals here). Since its authorization in the 1990 Clean Air Act (CAA) Amendments, CSB has also had authority to establish chemical accident reporting regulations.

On November 20, 2019, the Environmental Protection Agency (EPA) completed its latest review and revisions to the Accidental Release Prevention (ARP) program for toxic catastrophe prevention under the Clean Air Act (CAA). These changes complete the Trump Administration’s review and repeal of most changes enacted during the Obama Administration, returning ARP requirements to roughly the point they were at before 2016. The remainder of this note summarizes these changes.

The Resource Conservation and Recovery Act (RCRA) assigns the US Environmental Protection Agency (EPA) to define and then regulate “hazardous wastes.” RCRA provides EPA considerable discretion, and one way the agency applies that discretion is by separating hazardous wastes into categories that are subject to distinct waste management requirements. One basis for these categorizations is relative risk – since 1995, EPA has defined a limited set of lower-risk wastes as “universal wastes” subject to special rules intended to encourage recycling (40 CFR part 273).

For nearly 30 years, environmental regulation has included examples of market-like mechanisms, where overall pollution limits (“budgets”) are set and individual sources assigned trade-able “emission credits” that can be traded among sources as they negotiate the most efficient pathways to overall reduction necessary to meet the budget. Although proliferating “cap and trade” systems for greenhouse gases are probably the most widely known, other examples abound.

Since 1991, Safe Drinking Water Act’s (SDWA) Lead and Copper Rule (LCR) has required public water systems (PWSs) to take steps to protect their customers from hazardous levels of lead in drinking water. Even before the highly-publicized crisis in Flint, Michigan, the Environmental Protection Agency (EPA) was working to update and expand LCR’s protective measures. These efforts include a 2016 White Paper announcing the “urgent need” for revisions, describing key issues and possible revisions, and projecting a proposal to issue extensive LCR revisions during 2017. However, after President Trump assumed office, EPA’s priorities shifted and the agency delayed action (I summarized the existing LCR and wrote about EPA’s regulatory delay here). In November 2019, EPA proposed LCR changes, which I summarize below.

Since assuming office, President Trump and his administration have generally sought to reduce and repeal formal federal regulations, and to tighten appointed agency heads’ direct control over their agencies’ regulatory actions. These efforts have included executive orders (EO) from the President providing government-wide mandates and priorities (For example, I wrote about EO 13777, “Reducing Regulation and Controlling Regulatory Costs”, here). They have also included formal regulatory proceedings, mostly directed toward reducing or revoking requirements adopted during President Obama’s tenure (for example, I wrote about the latest changes to national vehicle emission standards here). Individual agencies have followed and reinforced these efforts (For example, I wrote about the Environmental Protection Agency “Back to Basics” initiative here).

In May 2017, the Environmental Protection Agency (EPA) convened a task force of career professionals to evaluate the agency’s Superfund cleanup policies and make recommendations for improvements. The Task Force issued recommendations in December 2017  (I wrote about them here), and has now issued its final report. The report includes multiple examples of accomplishments related to each of the Task Force’s five goals.

The federal government has taken another step in its car wars with California. Late in September the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) issued joint rules declaring NHTSA’s preemptive authority to set national standards covering greenhouse gas (GHG) emissions from petroleum-fueled vehicles and electric vehicles, and revoking a waiver from EPA that lets California set such standards.

Since President Trump took office, the US Department of Justice (DOJ) has taken repeated steps to restrict federal attorneys from negotiating settlements in which defendants agree to conduct “supplemental environmental projects (SEPs)” in exchange for reduced formal penalties for the noncompliance that led to the agency investigation and enforcement. Proponents see SEPs as a way to promote environmental and health values by encouraging defendants to undertake projects that wouldn’t occur otherwise in order to reduce or eliminate civil and/or criminal liability. Opponents see them as rogue efforts in which prosecutors substitute their own judgment for the statutory and regulatory directives that are supposed to guide their actions.

Among nearly one thousand pages of expansions to Clean Air Act (CAA) requirements, the 1990 CAA Amendments legislation provided for the creation of a national agency to conduct independent investigations of major chemical accidents, to issue accident-specific findings and specific or general recommendations for improved chemical handling and regulation, and to establish chemical accident reporting regulations.  This agency’s formal name is the Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB. CSB was finally funded and began work in federal Fiscal Year (FY) 1997-1998.