A former official at the U.S. Chemical Safety Board contends a federal judge’s recent ruling could not only hamper the federal agency’s ability to conduct a full investigation into the February 2015 blast at the Torrance refinery, but severely undermine its capacity to conduct future probes.

U.S. District Court Judge Consuelo B. Marshall issued the ruling Friday in a case related to a petition filed by the Department of Justice on behalf of the agency seeking to compel then refinery owner ExxonMobil to fully comply with administrative subpoenas related to the explosion and its cause.

The CSB has said the blast, which showered nearby neighborhoods with industrial fallout, almost caused a near-catastrophic release of potentially deadly hydrofluoric acid that could have killed or injured tens of thousands. The blast catapulted a 40-ton piece of equipment 100 feet that landed within 5 feet of a tank filled with modified hydrofluoric acid.

The agency is trying to find more precise information about the risks associated with the refinery’s use of modified HF, which contains an additive that supposedly inhibits the chemical’s ability to form a dangerous toxic cloud.

Data requests overly-broad

But ExxonMobil objected to some of the requests for data as overly broad, and Marshall agreed.

“Accordingly, the court concludes that CSB has been granted authority to investigate the February 2015 accidental release, but that its subpoena authority is limited to seeking information relevant to that investigation,” Marshall wrote. “The court concludes that CSB’s subpoenas are enforceable to the extent they seek information relevant to the ‘facts, conditions and circumstances and the cause or probable cause’ of the February 2015 accidental release.

“While many of the requests seek evidence that is relevant under this generous standard,” Marshall added, “some of the requests seek information with such attenuated connections to the February 2015 release that they cannot reasonably be considered relevant even under the most liberal relevance standard.”

In all, the judge ordered ExxonMobil to produce documentation fulfilling 29 of the requests, but said 26 of the DOJ requests were unenforceable.

Most significantly, the judge ruled that “most of the document requests related to HF and MHF were irrelevant and did not have to be produced.

Ruling criticized

The ruling was criticized by Sally Hayati, president of the Torrance Refinery Action Alliance, which supports a proposed ban on hydrofluoric acid. Only two California refineries use the chemical; both are in the South Bay and Harbor Area.

“CSB identified a serious public health risk that is being denied,” she said. “It sought to get to the truth, which has been buried under two decades of deception. And now that investigation is being thwarted.”

For example, the judge denied a DOJ request that ExxonMobil furnish to the CSB all records related to the 1990 consent decree between ExxonMobil and the city of Torrance that allowed the use of MHF at the refinery. Those records were expected to show the percentage of additive used in the refining process and who signed off on its usage.

However, the judge did allow the DOJ request to stand that ExxonMobil provide all documentation related to the refinery’s risk-management plan for the past 17 years. The U.S. Environmental Protection Agency has raised questions over whether the required plan accurately describes the risks to the public from a release of MHF.

The judge rejected CSB’s argument that it has even broader investigative powers to subpoena documents that are not otherwise relevant to the February 2015 blast.

That decision could affect the board’s ability to conduct such probes in the future, said a former official with the agency, who requested anonymity.

Devastating setback

“This is a devastating setback for the CSB’s authority,” the official said. “For many years, the CSB has looked at near-miss accidents like the one that happened at ExxonMobil, and the decision jeopardizes any future ability to do so.

The agency’s legal argument “completely backfired on them,” the official added. “This is just going to make their job extremely difficult in the future with other companies. They asked for a lot and not only really ended up with nothing, but also a very damaging precedent.”

For example, the official noted that in 2008, the CSB investigated an industrial explosion that killed two workers and jeopardized a tank of toxic chemicals. The CSB looked into the chemical stored in the tank — which had nothing to do with the explosion itself — and its use was eventually discontinued.

It is in that sort of situation, where the CSB discovered a previously unknown safety issue, that the judge’s narrow ruling will have a likely effect, the official said.

ExxonMobil did not return a request for comment. The DOJ declined comment and the CSB released a statement that said it was reviewing the ruling.

“The CSB is encouraged that the court’s decision upholds the CSB’s authority to investigate the facts, conditions, and circumstances surrounding major chemical incidents,” spokeswoman Hillary Cohen said. “The investigative team will thoroughly review all documents supplied by ExxonMobil prior to determining the possibility of issuing a second volume of the report. Prior to receiving any documents, we will coordinate with DOJ to determine any next steps.”

*Original article online at http://www.dailybreeze.com/2017/11/08/judges-ruling-hamstrings-federal-probe-into-torrance-refinery-explosion-critics-claim/