ExxonMobil Petition

Case 2:17-mc-00066-CBM-PJW Document 19 Filed 06/13/17 Page 1 of 31 Page ID #:218
1 M. RANDALL OPPENHEIMER (S.B. #77649)

roppenheimer@omm.com
2 STEVEN J. OLSON (S.B. #182240)
3 solson@omm.com
OMELVENY & MYERS LLP
4 400 South Hope Street
Los Angeles, California 90071-2899
5 Telephone: (213) 430-6000
6 Facsimile: (213) 430-6407
7 Attorneys for Respondent

EXXONMOBIL OIL CORPORATION
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11 WESTERN DIVISION
12
13 UNITED STATES OF AMERICA, Case No. 2:17-mc-00066-CBM-PJWx
14 Petitioner, OPPOSITION TO PETITION TO
15 ENFORCE ADMINISTRATIVE
v. SUBPOENAS ISSUED BY
16 U.S. CHEMICAL SAFETY AND
EXXON MOBIL OIL HAZARD INVESTIGATION
17 CORPORATION, BOARD
18 Respondent. Hearing Date: August 29, 2017
19 Hearing Time: 10:00 a.m.
Courtroom: 8B
20 Judge: Hon. Consuelo B. Marshall
21
22
23
24
25
26
27
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OPPN TO CSBS PET. TO ENFORCE
2:17-MC-00066-CBM-PJWX
1
TABLE OF CONTENTS
2
Page
3
I. INTRODUCTION ........................................................................................... 1
4
II. STATEMENT OF FACTS AND BACKGROUND ...................................... 3
5 A. CSBs Purpose and Jurisdiction ............................................................ 3
6 B. The February 18, 2015 Accidental Release .......................................... 3
7 C. ExxonMobils Cooperation with CSBs Root Cause
Investigation .......................................................................................... 4
8
D. CSBs Focus on HF Rather Than Root Causes .................................... 5
9
E. CSBs Overreach into Subsequent Unrelated Refinery Incidents ........ 7
10
1. The March 11, 2015 Incident ..................................................... 7
11
2. The September 6, 2015 Incident ................................................. 7
12 F. ExxonMobils Good-Faith Attempts to Resolve the Dispute Fail ....... 8
13 III. ARGUMENT .................................................................................................. 9
14 A. ExxonMobil Complied with the Subpoenas to the Extent They
Sought Documents Within CSBs Authority to Investigate ............... 10
15
B. Administrative Subpoenas Issued Beyond a Federal Agencys
16 Authority to Investigate Are Unenforceable ....................................... 11
17 C. CSB Plainly Lacks Jurisdiction for Its HF Subpoenas ....................... 11
18 D. No Other Provisions of CSBs Enabling Statute Allow It to
Investigate a Near Miss ................................................................... 14
19
1. Subsection E Does Not Expand CSBs Authority.................... 15
20
a. Subsection Es Agency Coordination Function Has
21 Nothing to Do with CSBs Investigation
Jurisdiction ..................................................................... 15
22
b. Any Alternate Interpretation of Subsection E
23 Would Be Inconsistent with CSBs Own
Regulations ..................................................................... 16
24
2. Subsection M Does Not Expand CSBs Authority .................. 17
25
3. Subsection C(ii) Does Not Expand CSBs Authority .............. 18
26
E. CSB Seeks Information Irrelevant to Its Root Cause
27 Investigation ........................................................................................ 19
28 F. In the Alternative, a Protective Order Should Issue ........................... 22
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1
TABLE OF CONTENTS
2 (continued)
3 Page
4 IV. CONCLUSION ............................................................................................. 25
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6
7
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1
TABLE OF AUTHORITIES
2
Page
3 CASES
4 Adair v. Rose Law Firm,
867 F. Supp. 1111 (D.D.C. 1994) ........................................................... 22, 24, 25
5
Ashoff v. City of Ukiah,
6 130 F.3d 409 (9th Cir. 1997) ............................................................................... 15
7 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984) ............................................................................................ 14
8
EEOC v. Childrens Hosp. Med. Ctr.,
9 719 F.2d 1426 (9th Cir. 1983), overruled on other grounds............................... 11
10 EEOC v. Fed. Express Corp.,
11 558 F.3d 842 (9th Cir. 2009) ............................................................................... 20
12 EEOC v. Karuk Tribe Hous. Auth.,
260 F.3d 1071 (9th Cir. 2001) ............................................................................. 11
13
EEOC v. Kronos Inc.,
14 620 F.3d 287 (3d Cir. 2010) ................................................................................ 20
15 Gen. Ins. Co. v. EEOC,
491 F.2d 133 (9th Cir. 1974) ............................................................................... 20
16
Keene Corp. v. United States,
17 508 U.S. 200 (1993) ...................................................................................... 12, 13
18 NTSB v. Carnival Cruise Lines, Inc.,
19 723 F. Supp. 1488 (S.D. Fla. 1989) ..................................................................... 13
20 Peters v. United States,

853 F.2d 692 (9th Cir. 1988) ............................................................................... 22
21
United States v. Exxon Corp.,
22 628 F.2d 70 (D.C. Cir. 1980)................................................................... 22, 24, 25
23 United States v. Goldman,
637 F.2d 664 (9th Cir. 1980) ............................................................................... 20
24
United States v. Judicial Watch, Inc.,
25 266 F. Supp. 2d 1 (D.D.C. 2002) ........................................................................ 21
26 United States v. Theodore,
479 F.2d 749 (4th Cir. 1973) ............................................................................... 22
27
28
- iii - 2:17-MC-00066-CBM-PJWX
1 TABLE OF AUTHORITIES
(continued)
2
Page
3
STATUTES
4
42 U.S.C. 7410(f)................................................................................................... 17
5
42 U.S.C. 7412(r)................................................................................................... 17
6
42 U.S.C. 7412(r)(1) .............................................................................................. 17
7
42 U.S.C. 7412(r)(6)(C) .................................................................................... 3, 17
8
42 U.S.C. 7412(r)(6)(C)(i) ....................................................................... 1, 3, 12, 21
9
42 U.S.C. 7412(r)(6)(C)(ii)................................................................................ 3, 12
10
42 U.S.C. 7412(r)(6)(E) ................................................................................... 15, 16
11
42 U.S.C. 7412(r)(6)(F) ........................................................................................... 3
12
42 U.S.C. 7412(r)(6)(L) ......................................................................... 3, 10, 13, 16
13
42 U.S.C. 7412(r)(6)(M).................................................................................... 3, 10
14
42 U.S.C. 7545(c)(3) ............................................................................................. 17
15
42 U.S.C. 7607(a) ........................................................................................ 3, 10, 17
16
Cal. Health & Safety Code 40001(b) ...................................................................... 2
17
Pub. L. 109-295 550(a) .......................................................................................... 23
18
OTHER AUTHORITIES
19
AQMD, PR 1410 Working Group Meeting #1 (Apr. 19, 2017)
20 available at http://www.aqmd.gov/docs/default-source/rule-
book/Proposed-Rules/1410/mtg1-final.pdf?sfvrsn=6 ........................................... 2
21
H.R. Rep. No. 101-490(I) (1990) ....................................................................... 15, 16
22
H.R. Rep. No. 101-952 (1990) ................................................................................. 16
23
S. Rep. No. 101-228 (1989) ...................................................................... 3, 13, 15, 19
24
Tiffany Hsu, Q&A; Chemical Safety Board Chair on the Torrance
25 Refinery Explosion, L.A. Times, Mar. 16, 2015 ................................................... 6
26 U.S. Chem. Safety Bd., CSB Releases Final Report into 2015
27 Explosion at ExxonMobil Refinery in Torrance, California (May 3,
2017), http://www.csb.gov/csb-releases-final-report-into-2015-
28 explosion-at-exxonmobil-refinery-in-torrance-california ..................................... 5
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1 TABLE OF AUTHORITIES
(continued)
2
Page
3
U.S. Chem. Safety Bd., CSB Strategic Plan 2012-2016 (2012),
4 available at
http://www.csb.gov/assets/1/7/Final_20Strategic_20Plan_20.pdf........................ 6
5
U.S. Chem. Safety Bd., CSB Strategic Plan 2017-2021 (2016),
6 available at
7 http://www.csb.gov/assets/1/7/CSB_Strategic_Plan_2017_v22_prin
t_singles_lores.pdf. ................................................................................................ 6
8
U.S. Dept of Just., Report to Congress on the Use of Administrative
9 Subpoena Authorities by Executive Branch Agencies and Entities,
https://www.justice.gov/archive/olp/rpt_to_congress.htm.................................. 18
10
U.S. Envtl. Prot. Agency Office of Inspector Gen., 13-P-0337, U.S.
11 Chemical Safety and Hazard Investigation Board Needs to
Complete More Timely Investigations (2013), available at
12 https://www.epa.gov/sites/production/files/2015-
13 09/documents/20130730-13-p-0337.pdf ............................................................... 8
14 REGULATIONS
15 40 C.F.R. 1600.3 .............................................................................................. 16, 17
16 40 C.F.R. 1601.26(b) ............................................................................................. 25
17 40 C.F.R. 1601.26(c) ............................................................................................. 25
18 40 C.F.R. 1601.26(e) ............................................................................................. 25
19 40 C.F.R. 1610.1 .................................................................................................... 13
20 40 C.F.R. 1610.2 .................................................................................................... 13
21 40 C.F.R. 1610.3 .................................................................................................... 13
22 40 C.F.R. 1610.4 .................................................................................................... 13
23 40 C.F.R. 68.81 ...................................................................................................... 17
24 40 C.F.R. ch. VI, pt. 1610......................................................................................... 13
25 6 C.F.R. 27.400 ...................................................................................................... 23
26 6 C.F.R. 27.400(e)(2)(i) ......................................................................................... 24
27
28
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1 I. INTRODUCTION
2 Congress established the Chemical Safety and Hazard Board (CSB) with a
3 mandate to investigate the root causes of actual accidental chemical releases in
4 which a fatality, serious injury, or substantial property damage occurred. To carry
5 out that mission, Congress armed CSB with the authority to issue judicially
6 enforceable subpoenas and enter private property. Here, CSB conductedand
7 Respondent ExxonMobil Oil Corporation (ExxonMobil) cooperated witha
8 now-completed investigation into a February 2015 incident in the Fluid Catalytic
9 Cracking (FCC) unit at the Torrance Refinery, then owned by ExxonMobil. To
10 aid that investigation, CSB issued document requests and subpoenas pursuant to its
11 statutory investigation authority, 42 U.S.C. 7412(r)(6)(C)(i) (Subsection C(i)).
12 In response, ExxonMobil produced 65 witnesses for CSB interviews and nearly
13 137,000 pages of documents. ExxonMobils productions allowed CSB to fulfill its
14 statutory mandate under Subsection C(i)on May 3, 2017, just one day after this
15 Petition was filed, CSB issued its final investigation report.
16 With this Petition, CSB seeks to improperly expand both its jurisdiction and
17 the subpoenas it issued, now referring to provisions never cited in the subpoenas.
18 Congress stopped short of allowing CSB to wield its subpoena powers to conduct
19 discretionary research into the potential for accidental releases. Even though CSB
20 acknowledges that hydrofluoric acid (HF) was not accidentally released in
21 February or used in the FCC unit where the incident occurred, it has used the
22 February incident as an excuse for an unauthorized expansion of its investigative
23 powers: to research the potential hazards of HF, and a derivative, Modified HF
24 (MHF). While CSBs Petition glosses over its intention to pursue an
25 unauthorized general hazard study, the record of the negotiations between the
26 parties over the contested documents reveals the truth. Although not mentioned in
27 the Petition, good-faith negotiations over the contested documents ended in
28 ExxonMobils offer to produce all outstanding documents almost six months ago,
2:17-MC-00066-CBM-PJWX
1 under reasonable conditions to protect the companys Confidential Business

2 Information (CBI). Chief among these conditions was a provision confirming
3 that CSB would only use ExxonMobils documents for its investigation into the
4 February incident, and not for a general hazard study. Notably, CSB had
5 previously agreed to nearly identical conditions for certain other ExxonMobil
6 documents, but broke off negotiations and completed its investigation report
7 without the documents requested in this Petition.
8 The implication of CSBs actions is clearit is attempting an end run around
9 the limits of its investigative authority. The underlying subpoenas were issued
10 pursuant to CSBs Subsection C(i) authority to investigate the facts, conditions, and
11 circumstances and the cause or probable cause of the February incident. Yet CSBs
12 own Petition reveals that most of its outstanding requests relate to a hypothetical
13 incident it asserts nearly occurrednot the incident itself. (See, e.g., Pet. 46a.,
14 48c., 48h.-l., 48n.-o., 48r., 48t., 50a.-n.) Each of CSBs justifications for its
15 contested subpoenasthe evaluation of a theoretical MHF accidental release, the
16 associated consequences of that potential accident, the history of MHF use at the
17 Refinery, and the potential risks thereofall fall squarely into the category of
18 general hazard research. Importantly, this very issue is currently being studied by
19 the South Coast Air Quality Management District (AQMD), which, within its
20 statutory mandate,1 is evaluating alternatives to MHF use at the Torrance Refinery
21 and elsewhere in the region.2 CSB, on the other hand, lacks authority to issue such
22 subpoenas. For this reason, the Court should deny CSBs Petition.
23 In the alternative, should the Court enforce CSBs ultra vires subpoenas, then
24 1
See Cal. Health & Safety Code 40001(b) (AQMD issues rules and regulations that provide
25 for the prevention and abatement of air pollution episodes which, at intervals, cause discomfort or
health risks to, or damage to property of, a significant number of persons or class of persons).
26 2
See AQMD, PR 1410 Working Group Meeting #1 (Apr. 19, 2017) available at
27 http://www.aqmd.gov/docs/default-source/rule-book/Proposed-Rules/1410/mtg1-
final.pdf?sfvrsn=6 (describing rulemaking process for Proposed Rule 1410, which could result in
28 a ban on the use of MHF at the Refinery).
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1 ExxonMobil requests a protective order that mirrors the reasonable conditions

2 ExxonMobil sought before CSB unnecessarily brought this Petition.
3 II. STATEMENT OF FACTS AND BACKGROUND
4 A. CSBs Purpose and Jurisdiction
5 Pursuant to 42 U.S.C. 7412(r)(6)(C), CSB is required to investigate (or
6 cause to be investigated), determine and report to the public in writing the facts,
7 conditions, and circumstances and the cause or probable cause of any accidental
8 release resulting in a fatality, serious injury or substantial property damages. 42
9 U.S.C. 7412(r)(6)(C)(i) (emphasis added). Based on its [Subsection C(i)]
10 investigation and report, CSB then make[s] recommendations . . . with respect to
11 rules and requirements to prevent similar accidental releases in the future. See 42
12 U.S.C. 7412(r)(6)(C)(ii); S. Rep. No. 101-228 at 234 (1989). CSB can issue
13 subpoenas or enter property for the purpose of carrying out duties authorized by
14 subparagraph (C). 42 U.S.C. 7412(r)(6)(L). CSB may also, in its discretion,
15 conduct research and studies with respect to the potential for accidental releases.
16 42 U.S.C. 7412(r)(6)(F). However, Congress declined to provide CSB with the
17 same tools to carry out research and studies under Subsection F: no subpoena
18 power, no open-door access.3
19 B. The February 18, 2015 Accidental Release
20 On February 18, 2015, an over-pressurization occurred in the electrostatic
21 precipitator (ESP) in the Torrance Refinerys FCC unit. (Declaration of Grace C.
22 Yeh in Support of ExxonMobils Opposition (Yeh Decl.) 2.) The incident
23 occurred as a result of a hydrocarbon leak from the FCC to an ignition source in the
24 ESP during non-routine maintenance activities. (Id.) Fortunately, the incident
25 caused only a handful of minor injuries, and the only substance released was a light
26
3
27 Similarly, the Environmental Protection Agencys (EPA) subpoena authority, which CSB is
vested with under Subsection M, can be used only for limited purposes, none of which include
28 general hazard studies. See 42 U.S.C. 7607(a), 7412(r)(6)(M).
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1 dust not expected to be hazardous to people or animals. (See id. 3.) While the
2 over-pressurization caused a piece of equipment debris to land on scaffolding
3 surrounding the Refinerys Alkylation Unit, the Unit itself was undamaged. (Id.
4 4.) It is undisputed that the FCC Unit does not use MHF, and there was no release
5 of any MHF (or HF) on February 18. (Id.; see also, e.g., Pet. 31, 46a. (alleging
6 such a release nearly occurred).)
7 Seventeen separate government agencies contacted ExxonMobil the day of
8 the incident and two, California Division of Occupational Safety and Health
9 (Cal/OSHA) and the Environmental Protection Agency (EPA), immediately
10 initiated multi-week investigations. (Yeh Decl. 5.) CSB did not contact
11 ExxonMobil and initiate its root cause investigation into the February incident until
12 weeks later. (Id. 7.)
13 C. ExxonMobils Cooperation with CSBs Root Cause Investigation
14 As the CSB Chairperson has acknowledged, ExxonMobil has been
15 responsive to the valid portions of CSBs investigation.4 When CSB arrived on-
16 site, ExxonMobil provided an in-person incident briefing and copies of all the
17 documents already produced to the other investigating agencies. (Yeh Decl. 7.)
18 In the weeks and months that followed, CSB issued a combined 380 document
19 requests and subpoenas, including dozens of duplicative requests. (Id. 8.)
20 ExxonMobil continued to produce documents and witnesses, including more than
21 80,000 pages of documents within the first three weeks. (Id. 9.) In total,
22 ExxonMobil produced 65 witnesses for CSB interviews and responded to 329 CSB
23 document and subpoena requests by producing nearly 137,000 pages of documents.
24 (Id. 10.) ExxonMobil also made in-house experts available for informational
25 interviews on various topics, many with little relation to the February incident.
26
4
27 See Transcript of CSB Business Meeting (Jan. 20, 2016) at 8 (ExxonMobil has been responsive
to many, if not all, information requests concerning the ESP unit . . . .), available at
28 http://www.csb.gov/assets/1/7/transcript_public_meeting_1.20.pdf.
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1 (Id.)
2 CSB was given extensive information about the root cause and circumstances
3 of the FCC incident. As required by the California General Industry Safety Orders
4 Section 5189, known as the Process Safety Management (PSM) standard, a team
5 of trained experts from ExxonMobil performed an incident investigation into the
6 root cause of the February 18 incident. (Id. 6.) On May 6, 2015, ExxonMobils
7 PSM investigation team briefed CSBs investigators and disclosed their findings
8 prior to finalizing the report. (Id. 13.) At CSBs request, the PSM team further
9 described recommended corrective actions specific to the FCC and ESP. (Id.)
10 Once finalized, the PSM report was promptly produced to CSB. (Id. 14.)
11 CSBs root cause investigation is now complete. On May 3, 2017, CSB
12 released its final investigation report regarding the causes and circumstances of the
13 FCC unit over-pressurization. 5 However, CSBs Petition does not mention its
14 completed report, instead alleging that ExxonMobils failure to provide the
15 requested information has impeded and delayed the Boards investigation. (See
16 Pet. 40.)
17 D. CSBs Focus on HF Rather Than Root Causes
18 Soon after arriving on site, CSB began seeking materials related to HF,
19 despite the fact that neither HF nor its derivative MHF was used in or released by
20 the FCC unit. (See Yeh Decl. 4.) For example, CSB sought decades-old details
21 about a consent decree process from the 1990s, 6 safety advisor reports, a 1994
22 5
U.S. Chem. Safety Bd., CSB Releases Final Report into 2015 Explosion at ExxonMobil Refinery
23 in Torrance, California (May 3, 2017), http://www.csb.gov/csb-releases-final-report-into-2015-
explosion-at-exxonmobil-refinery-in-torrance-california.
24 6
On October 23, 1990, Mobil Oil Corporation entered into a Consent Decree with the City of
25 Torrance that set forth a timetable for the replacement of anhydrous hydrofluoric acid (AHF)
by December 31, 1997. (See Yeh Decl. 19.) Under the Consent Decree, the court appointed a
26 Safety Advisor who recommended installation of safety mitigation systems and found that MHF
27 presented no greater risk than sulfuric acid alkylation, the only alternative process. (Id. 20.)
The Safety Advisors report evaluating the Torrance Refinerys use of MHF was approved by the
28 state court on April 21, 1995. (Id. 21.)
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1 accident in the Alkylation Unit that did not involve an HF release, and internal
2 MHF efficacy studies. 7 ExxonMobil respectfully declined to comply with these
3 requests because the February incident did not support CSB jurisdiction to issue
4 them. (Id. 17.)
5 CSB has persisted in seeking information relating to HF and MHF. 8 CSBs
6 true intentions for doing so are clear: CSB wants to access documents about the
7 use of MHF at the Torrance Refinery for purposes of issuing a hazard study.
8 Although the use of HF in refining has been extensively studied for years, in its
9 2012-2016 Strategic Plan, CSB identified the use of [HF] in alkylation units at
10 refineries as an area[] being considered for future study. 9 The former CSB
11 Chairperson revealed CSBs motivations in March 2015even though
12 investigators had been sent to look[] at the events that led to the explosion,
13 including over-pressurization, and particular safety management issues, he
14 still noted that [a] chemical that we have a special interest in is hydrogen
15 fluoride. 10 Indeed, in a January 2016 public meeting, CSBs Chairperson
16 confirmed that the ExxonMobil investigation was in furtherance of CSBs general
17 research into alternatives to HF. 11 CSBs Petition further exposes its motivation,
18
7
19 See, e.g., Pet. 48c., 48i., 48j.
8
See id. 42a., 46a., 48c., 48h.-l., 48n.-o., 48r., 48t., 48x., 50a.-n.
20
9
See U.S. Chem. Safety Bd., CSB Strategic Plan 2012-2016 (2012), at 16, available at
21 http://www.csb.gov/assets/1/7/Final_20Strategic_20Plan_20.pdf. Moreover, in its 2017-2021
Strategic Plan, CSB identified HF as a recurrent chemical safety issue. U.S. Chem. Safety Bd.,
22 CSB Strategic Plan 2017-2021 (2016), at 6, available at
23 http://www.csb.gov/assets/1/7/CSB_Strategic_Plan_2017_v22_print_singles_lores.pdf.
10
See Tiffany Hsu, Q&A; Chemical Safety Board Chair on the Torrance Refinery Explosion,
24 L.A. Times, Mar. 16, 2015 (further stating that [e]ven though there is not any evidence that there
25 were any leaks, the potential that it might have happened is reason for us to look at how this type
of work is being done so, in the future, we eliminate as much risk as possible).
26 11
See Transcript of CSB Business Meeting (Jan. 20, 2016) at 8, available at
27 http://www.csb.gov/assets/1/7/transcript_public_meeting_1.20.pdf (Another area of CSB interest
is the use of HF in refinery alkylation units, which . . . I mentioned earlier in the context of the
28 [ExxonMobil] investigation . . . .).
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1 citing the potential effects of HF exposure and questioning whether modified

2 hydrofluoric acid is actually safer. (See Pet. 32, 33.)
3 E. CSBs Overreach into Subsequent Unrelated Refinery Incidents
4 CSBs unauthorized practice of using its Subsection C investigative powers
5 to conduct general hazard research was not limited to the February incident.
6 Several of the CSB subpoena requests at issue in this Petition pertain to incidents
7 that occurred after the February incident, in wholly separate units, and for which
8 CSB cannot claim independent investigation jurisdiction under Subsection C.
9 1. The March 11, 2015 Incident
10 On March 11, 2015, debris from the February incident entered the Refinerys
11 PTR Unit, a separate unit from the FCC, causing a small fire. (See Yeh Decl.
12 11-12.) The fire was quickly extinguished and the incident resulted in no fatalities,
13 serious injuries, or substantial property damage. (Id. 11.) Nevertheless, CSB
14 issued a subpoena to inquire into [a]ny and all documentation concerning the
15 March 11, 2015 [platinum reformer unit] fire incident, and the names of all
16 personnel assigned to, working at, or responding to the [platinum reformer] unit
17 that day. (See Pet. 43a.-b.)
18 2. The September 6, 2015 Incident
19 Seven months after the February incident, a minor release of MHF occurred
20 at a nozzle clamp on a fresh acid unloading line in the Refinerys Alkylation Unit.
21 (Yeh Decl. 15.) Less than 10 pounds of MHFan amount more than 90 pounds
22 below the 100-pound regulatory threshold for reporting accidental chemical spills
23 to state and federal agencieswas leaked. (See id.) This clamp leak resulted in no
24 deaths, injuries, property damage, or on- or off-site impacts. (Id.) In spite of the
25 fact that the nozzle incident occurred more than a half year after the February
26 incident and, logically, could not possibly be a cause or probable cause of that
27 event, CSB immediately began pointing to the September incident to justify its
28 requests for HF documents. (Id.) And CSB began to issue new subpoena requests
-7- 2:17-MC-00066-CBM-PJWX
1 regarding the September incident, even though it lacks independent authority to do

2 so.12
3 F. ExxonMobils Good-Faith Attempts to Resolve the Dispute Fail
4 Throughout this dispute, ExxonMobil has repeatedly tried to narrow the set
5 of disputed items and reach a mutually acceptable resolution. ExxonMobil has also
6 offered CSB opportunities to review certain documents in camera and provided
7 CSB with expert witnesses to speak to the subject of several subpoena requests.
8 (Declaration of Steven J. Olson in Support of ExxonMobils Opposition (Olson
9 Decl.) 2-3.) In turn, CSB has, without explanation, seesawed between urgent
10 threats of enforcement and enigmatic silence. 13
11 Most surprisingly, CSB rejected, with little explanation, ExxonMobils offer
12 to produce all remaining documents subject to a non-disclosure agreement that was
13 consistent with CSBs prior assurances regarding certain previously-produced
14 documents. (See id. 7-9.) Such conditions were necessary because of the
15 subject matter of the documents at issue and because CSB has a history of
16 mishandling confidential information. For example, several recent EPA Office of
17 Inspector General audits highlighted CSBs failure to properly classify and store
18 investigation files.14
19 12
See Pet. 50a.-n. (fourteen requests regarding September 2015 minor HF release).
20 13
CSB referred this matter to the U.S. Attorneys Office (USAO) in or about December 2015.
21 (Olson Decl. 4.) ExxonMobil contacted the USAO on December 14, 2015 to start a dialogue
about the outstanding subpoena requests. (Id. 5.) ExxonMobil did not hear from the USAO
22 again until over eight months later, in August 2016, when it afforded ExxonMobil less than a
week to substantively respond to CSBs demands. (Id. 6.) After a series of negotiations that
23 culminated with ExxonMobil sending a reasonable proposal for production of all outstanding
documents in September 2016, ExxonMobil did not hear from the USAO for another two months,
24 when it gave ExxonMobil a little over a week to respond to CSBs counter-proposal. (Id. 7-
25 10.) CSB then waited five months to file this Petition. (Id. 15.)
14
See, e.g., U.S. Envtl. Prot. Agency Office of Inspector Gen., 13-P-0337, U.S. Chemical Safety
26 and Hazard Investigation Board Needs to Complete More Timely Investigations (2013) at 12-13,
27 available at https://www.epa.gov/sites/production/files/2015-09/documents/20130730-13-p-
0337.pdf (CSB staffs are not classifying or coding multiple records in their electronic
28 investigation files in accordance with records management or investigation protocol policies.).
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1 When ExxonMobil asked CSB for additional information in order to develop

2 a counter-proposal acceptable to both sides, CSB refused to provide ExxonMobil
3 with any specific laws, regulations, or policies that prohibited the commitments
4 ExxonMobil sought. (Olson Decl. 9.) CSB then declined to further engage on
5 any of the issues, even after ExxonMobil limited its production conditions to those
6 already offered by CSB 15 plus three requests(1) a provision that limited CSBs
7 use of the documents consistent with its statutory authority; (2) a provision that
8 would provide ExxonMobil with notice and an opportunity to object to any
9 disclosure of the documents under the Freedom of Information Act (FOIA); and
10 (3) a provision that extended ExxonMobils protection from CSBs discretionary
11 release of documents under FOIA Exemption 4. (Id. 12-14, Ex. C-D.) CSBs
12 refusal to agree to the limited use provision confirmed what ExxonMobil suspected
13 all alongthat CSB is planning to subvert the limits set by its enabling statute and
14 use the documents at issue for an HF study. 16
15 III. ARGUMENT
16 CSBs outstanding subpoena requests are unenforceable. CSB lacks
17 jurisdiction to use its subpoena powers to explore the hazards relating to a potential
18 releaseCongress clearly withheld from CSB the use of these invasive powers for
19 discretionary research. Seemingly recognizing this limitation, CSB cited only to
20 Subsections C(i), (L)(i-ii), and (M) in its subpoenas. The Court owes no deference
21 to any new reading of the statute that CSB now asserts in this Petition.
22 ExxonMobil has been fully cooperative with CSBs otherwise-appropriate
23 investigation of the root cause of the February incident, and CSB has issued its final
24 report on that topic. The information CSB seeks in its Petition is irrelevant and
25
15
26 See Olson Decl. 10, Ex. B.
16
27 Further evidencing its intent, CSBs proposed production agreement indicated that
ExxonMobils materials would be used in other report[s] or stud[ies] beyond the investigation
28 report on the February incident. (See id. 11, Ex. B.)
-9- 2:17-MC-00066-CBM-PJWX
1 well beyond the scope of that investigation, as evidenced by the fact that CSBs
2 investigation is now complete. Moreover, many of the documents at issue are
3 highly sensitive and proprietary and, if this Court orders their production,
4 ExxonMobil requests that it do so with proper protections in place.
5 A. ExxonMobil Complied with the Subpoenas to the Extent They
Sought Documents Within CSBs Authority to Investigate
6
7 The administrative subpoenas were issued pursuant to Subsections C(i), L,
8 and M. Subsection C(i) provides CSB its authority to investigate the facts,
9 conditions, and circumstances and the cause or probable cause of the February
10 incident. Congress furnished CSB with an arsenal of tools to fulfill its mandate and
11 conduct a Subsection C investigation. Subsection L provides that CSB can utilize
12 subpoenas for the purpose of carrying out duties authorized by subparagraph (C).
13 42 U.S.C. 7412(r)(6)(L). Subsection L also permits CSB to enter any property
14 where an accidental release causing a fatality, serious injury or substantial property
15 damage has occurred and do all things therein necessary for a proper
16 investigation pursuant to subparagraph (C) . . . . Id. Subsection M allows CSB the
17 same information-gathering authority that EPA has under the Clean Air Act,
18 including, as relevant here, the authority to seek judicial enforcement of its
19 subpoenas if the recipient fails to comply. See 42 U.S.C. 7607(a),
20 7412(r)(6)(M); see also Pet. 4.
21 ExxonMobil has complied with all requests properly issued under CSBs
22 statutory authority to investigate the facts, conditions, and circumstances and the
23 cause or probable cause of the February incident by providing over 137,000 pages
24 of schematics, data records, maintenance records, inspection records, logs,
25 procedures, electronic mail, and radio communications, among other things. (Yeh
26 Decl. 10.) As a result, CSB was able to fulfill its statutory duty by issuing its
27 final report on May 3, 2017.
28
- 10 - 2:17-MC-00066-CBM-PJWX
1 B. Administrative Subpoenas Issued Beyond a Federal Agencys

Authority to Investigate Are Unenforceable
2
3 The subpoena requests referenced in CSBs Petition are outside the agencys
4 authority as they seek information not relating to the facts, conditions, and
5 circumstances and cause or probable cause of the February incident. A district
6 court assessing whether to enforce an administrative subpoena evaluates: (1)
7 whether Congress has granted the authority to investigate; (2) whether procedural
8 requirements have been followed; and (3) whether the evidence is relevant and
9 material to the investigation. EEOC v. Childrens Hosp. Med. Ctr., 719 F.2d
10 1426, 1428 (9th Cir. 1983), overruled on other grounds. If those conditions are
11 met, the burden shifts to the objecting party to show that the subpoena is overbroad
12 or that compliance would be unduly burdensome. Id. Courts may not enforce
13 administrative subpoenas when the agency lacks jurisdiction over the subject of
14 the investigation. EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1077 (9th
15 Cir. 2001) (reversing enforcement of administrative subpoena where agencys
16 investigation exceeded its jurisdiction). A subpoena must be enforced unless
17 jurisdiction is plainly lacking. Childrens Hosp., 719 F.2d at 1430 (internal
18 quotation marks omitted).
19 C. CSB Plainly Lacks Jurisdiction for Its HF Subpoenas
20 Although CSB asserts that its subpoenas are within the Boards mandate to
21 investigate the facts, conditions, and circumstances and the cause or probable cause
22 of any accidental release resulting in a fatality, serious injury, or substantial
23 property damage, (see Pet. 58), CSBs principal justification for its HF fishing
24 expedition is the so-called near miss that occurred during the February incident.
25 CSB stresses, repeatedly, that its HF-related requests are necessary to show the
26 potential consequences of a release of modified hydrofluoric acid, which nearly
27 occurred in the February 2015 explosion. (See, e.g., id. 46a. (emphasis added);
28 see also id. 48c., 48k., 48n., 50b.) CSB lards its Petition with hyperbolic and
- 11 - 2:17-MC-00066-CBM-PJWX
1 frightening what if scenarios about a disaster that allegedly almost occurred (e.g.,
2 id. 32, 48n., 48r., 48t.). But at the end of the day, there is no dispute that the
3 February incident did not cause a single molecule of HF to be released. That ends
4 the matter.
5 To be sure, CSB has a statutory obligation to investigate the facts,
6 conditions, and circumstances and the cause or probable cause relating to the
7 accidental release[] of silicate dust that did occur in the February incident. 42
8 U.S.C. 7412(r)(6)(C)(i). CSB is also obligated, based upon the results of this
9 investigation, to recommend[] measures to reduce the likelihood or the
10 consequences of accidental releases and propos[e] corrective steps to make
11 chemical production, processing, handling and storage as safe and free from risk of
12 injury as is possible. See 42 U.S.C. 7412(r)(6)(C)(ii). CSB has used its
13 Subsection C powers, for example, to explore the circumstances that led to the
14 over-pressurization in the ESP unit, including the inspection and maintenance
15 records for equipment in the connected Unsaturated Gas Plant process unit that
16 provided the source of hydrocarbons. And, it bears emphasizing, ExxonMobil has
17 diligently cooperated with that prong of CSBs investigation, which is now
18 complete.
19 It has long been a rule of ordinary statutory construction that when Congress
20 includes particular language in one section of a statute but omits it in another,
21 courts generally presume[] that Congress acts intentionally and purposely in the
22 disparate inclusion or exclusion. Keene Corp. v. United States, 508 U.S. 200, 208
23 (1993) (internal quotation marks omitted). Here, Congress drew a sharp line
24 between CSBs mandate to investigate the causes of certain accidental releases
25 under Subsection C (by granting subpoena authority), and CSBs discretionary
26 authority to research and study the potential for accidental releases, whether or not
27 an accidental release has occurred under Subsection F (by withholding subpoena
28 authority). If Congress had intended CSBs authority to encompass investigations
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1 into the potential for accidental releases, rather than actual accidents, Congress
2 could have included that particular language in Subsection C. 17 See id. Similarly,
3 if Congress had intended CSB to exercise its subpoena powers to carry out
4 Subsection F discretionary research into the potential for accidental releases,
5 Congress could have included Subsection F in Subsection L. See 42 U.S.C.
6 7412(r)(6)(L) (subpoena powers granted to carry out Subsection (C)
7 investigations). Congress did neither. 18 This remains true regardless of the
8 purported public interest at stake in researching and reporting on the hazards of the
9 use of HF in refinery alkylation units. Cf. NTSB v. Carnival Cruise Lines, Inc., 723
10 F. Supp. 1488, 1494 (S.D. Fla. 1989) (declining to enforce National Transportation
11 Safety Board (NTSB) subpoena on jurisdictional grounds even if permitting the
12 NTSB to investigate this, and similar accidents, may [have been] in the best interest
13 of the American traveling public by tending to promote transportation safety).
14 Moreover, the distinction between CSBs expansive powers to investigate
15 accidents that did occur and limited powers to study those that might have occurred
16 makes abundant sense. The authority that CSB exercises in the course of a
17
17
18 The legislative history demonstrates that CSBs investigative authority is limited to examining
the root causes of actual, not hypothetical, accidents. See S. Rep. No. 101-228 at 229 (1989) (the
19 purpose of an accident investigation (as authorized here) is to determine the cause or causes of
an accident whether or not those causes were in violation of any current and enforceable
20 requirement); id. at 230 (one of CSBs five enumerated duties is to investigate serious
21 accidents which result from the production, processing, handling or storage of chemical
substances and report in writing on the cause or probable cause of each accident); id. at 233
22 ([T]he Board is to identify those actions, omissions, events, and conditions (or combination
thereof) which led to the accident or incident for the purpose of recommending modifications to
23 processes, equipment, and procedures to prevent similar accidents or incidents in the future.);
see also id. at 231, 234.
24 18
The regulations governing CSBs administrative investigations, 40 C.F.R. ch. VI, pt. 1610,
25 confirm this statutory analysis. The statutory authority cited for these regulations relating to the
representation of witnesses in investigations ( 1610.1); attorney misconduct, sanctions, and
26 hearings ( 1610.2); sequestration of witnesses and exclusion of counsel ( 1610.3); and
27 deposition transcripts ( 1610.4) all derive their authority from CSBs authority under
Subsections C (mandate to investigate accidental releases), L (investigative powers), and N
28 (rulemaking authority), but not Subsection F (research into potential for accidental releases).
- 13 - 2:17-MC-00066-CBM-PJWX
1 Subsection C investigation cannot be taken lightlyit embraces the power to

2 intrude on private property, subpoena documents, take depositions, and hold
3 hearings. In contrast, Congress did not hand CSB unfettered access to any facility
4 in the country to study potential hazards. CSB is entitled to study HF if it wishes
5 to; but it cannot subpoena documents and witnesses in furtherance of that study.
6 D. No Other Provisions of CSBs Enabling Statute Allow It to
Investigate a Near Miss
7
8 CSBs Petition cites Subsections C(ii), E, and M as establishing its authority
9 to issue the HF and MHF subpoenas at issue. (See Pet. 10-12, 14.) Subsections
10 C(ii) and E are not cited in the subpoenas, and none of these provisions allow CSB
11 the authority to subpoena documents to investigate a near miss scenario. Any
12 interpretation to the contrary would not be entitled to deference. When a court
13 reviews an agencys construction of the statute which it administers, it is confronted
14 with two questions. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
15 837, 842 (1984). First, applying the ordinary tools of statutory construction, the
16 court must determine whether Congress has directly spoken to the precise question
17 at issue. If the intent of Congress is clear, that is the end of the matter; for the
18 court, as well as the agency, must give effect to the unambiguously expressed intent
19 of Congress. Id. at 842-43. But if the statute is silent or ambiguous with respect
20 to the specific issue, the question for the court is whether the agencys answer is
21 based on a permissible construction of the statute. Id. at 843. Here the statutes
22 meaning is plain. The ordinary tools of statutory construction reveal the limits of
23 CSBs subpoena powers. There is no need to go further.
24 Even if the Court were to conclude that there was ambiguity in the statute,
25 any alternative interpretation of Subsections E, M, and C(ii) would be an
26 impermissible construction and inconsistent with CSBs regulations and practice.
27 Chevron deference does not extend to agency litigating positions that are wholly
28 unsupported by regulations, rulings, or administrative practice. Ashoff v. City of
- 14 - 2:17-MC-00066-CBM-PJWX
1 Ukiah, 130 F.3d 409, 411 (9th Cir. 1997) (internal quotation marks omitted). This
2 Court does not owe deference to any interpretation of CSBs authority to issue
3 subpoenas that would turn its enabling statute on its headSubsections E, M, and
4 C(ii) do not authorize CSB to issue its HF or MHF subpoenas here.
5 1. Subsection E Does Not Expand CSBs Authority
6 a. Subsection Es Agency Coordination Function Has
Nothing to Do with CSBs Investigation Jurisdiction
7
8 Any reliance on Subsection E to issue subpoenas related to HF or MHF here
9 would be entirely misplaced. The statute itself, and the legislative history behind it,
10 is clear that Subsection E is not an expansion of jurisdiction. Subsection E governs
11 the coordination of CSBs activities with investigations and studies conducted by
12 other agencies of the United States having a responsibility to protect public health
13 and safety. 42 U.S.C. 7412(r)(6)(E). The subsection eliminates duplicative
14 investigations when CSBs jurisdiction overlaps with that of NTSB and the
15 Occupational Safety and Health Administration (OSHA).
16 Indeed, the very language that CSB cites in its Petition, cautioning CSB not
17 to defer to those agencies when an accident has the potential to cause significant
18 damage, was included strictly for the purpose of resolving the problem of
19 overlapping investigations by competing agencies. See 42 U.S.C. 7412(r)(6)(E)
20 (In no event shall the Board forego an investigation where an accidental release
21 causes a fatality or serious injury among the general public, or had the potential to
22 cause substantial property damage or a number of deaths or injuries among the
23 general public.). As originally drafted, Subsection E focused on the relationship
24 between CSB and NTSB. S. Rep. No. 101-228 at 563 (1989). A subsequent House
25 Report includes a question from the Committee on Education and Labor as to
26 whether CSB will be authorized to investigate only those incidents that affect
27 persons or property outside of the chemical facility itself or if such investigations
28 could be construed to apply to in-plant accidents involving employees as well.
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1 H.R. Rep. No. 101-490(I), at 335 (1990). If the latter, the Committee had concerns:
2 OSHA is supposed to address the issue of employee safety and health and we
3 cannot expect any improvement if we undermine its jurisdiction. Id. The next
4 House Report reflected changes to the draft statute responsive to these concerns:
5 adding (1) the reference to OSHA and (2) the potential to harm language that
6 now appears in the last sentence of Subsection E. H.R. Rep. No. 101-952, at 175
7 (1990).
8 The upshot of these amendments is straightforward. Where an incident
9 involves a serious workplace injury caused by release of hazardous chemicals under
10 circumstances with no risk of harm to the publice.g., a beaker of a chemical is
11 spilled in a lab and it kills an employeeCSB defers to OSHA. But when the
12 accidental release falling within both CSBs and OSHAs jurisdiction actually
13 caused or had the potential to cause harm to the general public, then CSB shall not
14 forego an investigation. 42 U.S.C. 7412(r)(6)(E). With a potential public
15 threat, it is no longer appropriate for CSB to defer to OSHA, whose primary
16 responsibility is workplace safety, not the safety of the general public.
17 Finally, Subsection L, which supplies CSBs subpoena power, underscores
18 that Subsection E investigations are a subset of Subsection C investigations. The
19 text does not expand CSBs subpoena power to include Subsection E. Instead, the
20 statute limits CSBs subpoena power to the purpose of carrying out duties
21 authorized by subparagraph (C). See 42 U.S.C. 7412(r)(6)(L).
22 b. Any Alternate Interpretation of Subsection E Would
Be Inconsistent with CSBs Own Regulations
23
24 Nor do CSBs implementing regulations support the view that Subsection E
25 entitles CSB to issue subpoenas to investigate potential accidental releases. See 40
26 C.F.R. 1600.3(a) (Functions) (. . . CSB is responsible for the investigation and
27 determination of the facts, conditions, and circumstances and the cause or probable
28 cause or causes of any accidental release resulting in a fatality, serious injury, or
- 16 - 2:17-MC-00066-CBM-PJWX
1 substantial property damages.). Instead, CSBs regulations echo the commonsense

2 reading of the statute as distinguishing between accidental releases that did occur
3 under Subsection C versus potential accidents that did not.
4 Classifying the February accident as a near miss changes nothing about the
5 jurisdictional calculus. Only the regulations governing the reporting
6 responsibilities of owners and operators of facilities using regulated substances
7 reflect the notion of a near miss. The same section of the legislation establishing
8 CSB (42 U.S.C. 7412(r)) also requires owners and operators to identify hazards
9 under certain circumstances. See 42 U.S.C. 7412(r)(1). The regulations based on
10 this authority require owners and operators to investigate each incident which
11 resulted in . . . or could reasonably have resulted in a catastrophic release [of a]
12 regulated substance. 40 C.F.R. 68.81 (emphasis added). This near miss
13 language, however, is nowhere to be found in the regulation governing CSBs
14 investigative authority. Rather, the implementing regulation tracks the language of
15 42 U.S.C. 7412(r)(6)(C). See 40 C.F.R. 1600.3. CSBs regulations, therefore,
16 belie the position that it can issue subpoenas to investigate hypothetical scenarios.
17 2. Subsection M Does Not Expand CSBs Authority
18 Although Subsection M adopts the EPAs information-gathering authority, it
19 does not allow CSB to subpoena information for any purpose. If that were true,
20 then Subsection L, which authorizes CSB to utilize subpoenas for its Subsection C
21 investigations, would be superfluous. Under 42 U.S.C. 7607(a), EPA can only
22 issue subpoenas relating to (1) the Presidents determination that a national or
23 regional energy emergency exists (see 7410(f)); (2) obtaining information from
24 manufacturers of motor vehicles or engines (see 7545(c)(3)); or (3) any
25 investigation, monitoring, reporting requirement, entry, compliance inspection, or
26 administrative enforcement proceeding. See 42 U.S.C. 7607(a) (listing uses for
27 EPA subpoena power). A general hazard study does not fall into any of these
28 categories. Notably, an analysis by the Department of Justice, the very agency
- 17 - 2:17-MC-00066-CBM-PJWX
1 charged with bringing enforcement actions on behalf of CSB, has confirmed that
2 CSBs subpoena power under Subsection M does not extend to hazard studies. In a
3 2002 report to Congress on the use of administrative subpoena authorities by
4 executive branch agencies and entities, DOJ stated that Section 7607(a), the source
5 of the subpoena authority provided to the EPA, is an essential tool in conducting
6 [CSB] investigations. 19
7 Finally, even if the Court were inclined to grant deference to a contrary
8 interpretation of the interplay between Subsections M and F, this should have no
9 impact on the enforcement of the subpoenas at issue. None of the underlying
10 subpoenas rely on Subsection F, instead citing to Subsections (C)(i), (L)(i-ii), and
11 (M). Of these, only (C)(i) delineates the purpose for which the documents sought
12 will be used. Thus, CSB should not be permitted to use the documents at issue for
13 any other purpose, including a Subsection F research study regarding HF or MHF.
14 3. Subsection C(ii) Does Not Expand CSBs Authority
15 In passing, CSB mentions Subsection C(ii) in its Petition (see Pet. 10,
16 11b.), but offers no argument about this provision. And with good reason: any
17 suggestion that Subsections C(i) and C(ii) are not inextricably intertwined, or that
18 Subsection C(ii) alone provides CSB the requisite authority to issue subpoenas to
19 investigate or report on the likelihood or the consequences of accidental releases,
20 would be inconsistent with legislative history and CSBs own interpretation of the
21 provision. Legislative history makes clear that CSBs Subsection C(ii) reports and
22 recommendations are to be [b]ased on its investigation and report. 20 In other
23
24
19
25 U.S. Dept of Just., Report to Congress on the Use of Administrative Subpoena Authorities by
Executive Branch Agencies and Entities, https://www.justice.gov/archive/olp/rpt_to_congress.htm
26 (emphasis added) (last visited June 12, 2017) (further noting that [t]his authority has been used
or cited in several [CSB] investigations).
27 20
See S. Rep. No. 101-228 at 234 (1989); see also id. at 237 (referencing the recommendations
28 CSB made as the result of such investigations).
- 18 - 2:17-MC-00066-CBM-PJWX
1 words, Subsection C(ii) cannot be the tail that wags the jurisdictional dog. 21
2 Tellingly, CSB did not once cite to Subsection C(ii) in issuing the underlying
3 subpoenas, instead relying solely on its Subsection C(i) authority. For CSB to
4 claim that jurisdictional basis years later (if it is indeed doing so) would be nothing
5 but a post-hoc rationalization that the Court can readily disregard.
6 E. CSB Seeks Information Irrelevant to Its Root Cause Investigation
7 ExxonMobil does not dispute that CSB was entitled to investigate the cause
8 or possible causes of the February 18 incident. But that investigation is now
9 complete. On May 3, 2017, CSB issued its 73-page final investigation report
10 regarding the facts and circumstances that led to the accidental release, thereby
11 fulfilling its statutory mandate. If any of the information sought here was relevant,
12 CSB would have brought this Petition before releasing its final report. (Cf. Pet.
13 59 (alleging that [t]he information subpoenaed is relevant and necessary to the
14 purpose for which it was subpoenaed).)
15 Throughout its Petition, CSB evidences a belief that Subsection Cs use of
16 the phrase facts, conditions, and circumstances entitles it to request any and all
17 information about the Refinery and ExxonMobil at the time of the incident and,
18 even in some cases, thereafter. But, relevance to causation remains a check on the
19 scope of CSBs inquiry. The legislative history of CSBs enabling statute makes
20 this clear[t]he purpose of the investigation is to determine the conditions and
21 circumstances which led up to the accident and to identify the cause or probable
22 cause. See S. Rep. No. 101-228 at 231, 233 (1989) (emphasis added); see also id.
23 (The principal role of the new [CSB] is to investigate accidents to determine the
24 conditions and circumstances which led up to the event and to identify the cause or
25
21
CSBs most recent Strategic Plan also demonstrates the connection between CSBs reports and
26 recommendations and its Subsection C(i) investigations, stating that CSBs safety
27 recommendations, as well as the investigative facts and findings from which the
recommendations are derived, are the conduits through which chemical safety change can be
28 achieved. See CSB Strategic Plan 2017-2021 (2016), supra note 9 at 10.
- 19 - 2:17-MC-00066-CBM-PJWX
1 causes so that similar events might be prevented. (emphasis added)).

2 Because CSBs mandate is to determine only the facts and circumstances that
3 led to the accidental release, the evidence CSB seeks related to the use of MHF in a
4 different unit in the Refinery is plainly . . . irrelevant to any lawful purpose of the
5 agency. See EEOC v. Fed. Express Corp., 558 F.3d 842, 854 (9th Cir. 2009)
6 (internal quotation marks omitted). The same is true of CSBs sixteen document
7 requests related to the minor incidents which occurred after the February incident
8 and in different units, involving different chemicals, and entirely different
9 equipment. 22 Moreover, CSB makes little effort to establish the relevance of
10 ExxonMobil corporate documents that are not specific to the Torrance Refinery or
11 related to the facts, conditions, and circumstances that caused the February
12 accidental release.23 The Governments burden [in establishing relevance], while
13 not great, is also not non-existent. United States v. Goldman, 637 F.2d 664, 667
14 (9th Cir. 1980) (an agents mere assertion of relevance did not meet the minimal
15 showing of specificity required). CSB has offered no possible causal link between
16 the facts, conditions, and circumstances that contributed to the ignition of
17 hydrocarbon vapors in the FCC Units ESP on the morning of February 18 and the
18 documents it seeks, particularly those relating to HF or MHF and the March 2015
19 Refinery fire.
20 First, CSB postulates that the debris generated in the ESP over-pressurization
21 could have led to an MHF release from the nearby Alkylation Units HF settlers.
22 (See, e.g., Pet. 46a.) But, as discussed above, CSB cites no statutory authority
23 enabling an investigation into alternative scenarios. See EEOC v. Kronos Inc., 620
24 F.3d 287, 301 (3d Cir. 2010) (EEOC was not entitled to documents regarding race
25 discrimination when investigating a disability discrimination charge because the
26
22
See Pet. 44a.-b., 50a.-n.
27 23
See, e.g., Pet. 52b.-c. (stating this information tends to show the adequacy of the
28 information Exxon provided to the public).
- 20 - 2:17-MC-00066-CBM-PJWX
1 inquiry into potential race discrimination is not a reasonable expansion of [the

2 employees] charge); Gen. Ins. Co. v. EEOC, 491 F.2d 133, 136 (9th Cir. 1974)
3 (subpoena too broad when it demanded evidence of forms of discrimination not
4 claimed by the complainant and from outside the date of the events that the agency
5 was investigating). Under its view of the statute, any time CSB has a basis for
6 investigating an accidental release of one regulated substance, it will be granted
7 unlimited authority to investigate any other regulated substance at the facility
8 even if not a single drop of it was released in the original incident. And even if, for
9 the sake of argument, CSB were entitled to investigate alternative outcomes, that
10 would not entitle CSB to request information regarding future incidents or reach
11 back into the 1990s for information about the consent decree process, safety advisor
12 reports, an accident in the Alkylation Unit that did not involve an HF release, and
13 MHF efficacy studies. (See, e.g., Pet. 48c., 48i.-j, 48l.)24
14 Second, CSB has never claimed authority to investigate the September HF
15 leak or March fire independent of the February incident. Nor could it. Neither
16 incident resulted in a fatality, serious injury, or substantial property damage. See
17 42 U.S.C. 7412(r)(6)(C)(i). Nor can CSB show any possible connection between
18 the September incident, stemming from a clamp failure in a different part of the
19 Refinery, and the February 18 over-pressurization in the FCC unit. To justify its
20 request, CSB states only that this information is relevant to show the risks of [or
21 safeguards related to] modified hydrofluoric acid, which was nearly released in the
22 February 2015 explosion, as well as how modified hydrofluoric acid behaves when
23 it leaks. (See Pet. 50a.-n.) As this information is outside the scope of its root
24 cause investigation, CSB has not demonstrated that the separate accidental release
25
24
If this Court allows CSB to investigate alternative scenarios, in the alternative, ExxonMobil
26 requests that the scope of CSBs subpoenas be limited to the volume of HF in the Alkylation Unit
27 settlers at the time of the incident, see Pet. 48k., and the status and capability of the Refinerys
mitigation equipment, see Pet. 48r. Cf. United States v. Judicial Watch, Inc., 266 F. Supp. 2d 1,
28 23 (D.D.C. 2002) (directing government to narrow request).
- 21 - 2:17-MC-00066-CBM-PJWX
1 in September of a small volume of HF is even remotely relevant to the February 18

2 FCC investigation. The same can be said about the March incident, which also
3 occurred after the February incident at another location in the Torrance Refinery
4 and for different reasons. (See Yeh Decl. 12; Pet. 35.) Documents relating to
5 the March fire or its cause will not inform the cause of the February incident.
6 CSBs subpoenas are a fishing expedition into irrelevant matters. See
7 Peters v. United States, 853 F.2d 692, 700 (9th Cir. 1988). CSB has no right to sift
8 through ExxonMobils files in search of all possible instances of mechanical
9 failures or company wrongdoing. See United States v. Theodore, 479 F.2d 749, 754
10 (4th Cir. 1973) ([T]he [IRS] is not to be given unrestricted license to rummage
11 through the office files of an accountant in the hope of perchance discovering
12 information that would result in increased tax liabilities for some as yet unidentified
13 client.).
14 F. In the Alternative, a Protective Order Should Issue
15 Should the Court enforce any of CSBs subpoenas, ExxonMobil requests a
16 protective order that mirrors the production agreement CSB drafted, plus three
17 reasonable conditions outlined below. Because the enforcement of a subpoena is
18 an independent judicial action . . . , a court is free to change the terms of an agency
19 subpoena as it sees fit. United States v. Exxon Corp., 628 F.2d 70, 77 (D.C. Cir.
20 1980) (citations omitted). Such modification can involve incorporating additional
21 confidentiality protections for documents produced in response to agency
22 subpoenas. Adair v. Rose Law Firm, 867 F. Supp. 1111, 1119 (D.D.C. 1994).
23 Confidentiality protections are appropriate given the documents at issue here.
24 First, many of the documents CSB seeks are highly proprietary. These documents
25 include trade secrets unique to ExxonMobils refining, chemical, engineering,
26 safety, and managerial processes. (Yeh Decl. 23.) Public or competitor access to
27 the information contained within the documents would be likely to cause
28 substantial harm to ExxonMobils competitive position. (Id. 25-27.) Second,
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1 CSB seeks documents that contain confidential data from a third party, Solomon
2 Associates.25 Third, many of CSBs subpoena requests call for sensitive Chemical-
3 terrorism Vulnerability Information (CVI) protected under the Chemical Facility
4 Anti-Terrorism Standards (CFATS) program, 6 C.F.R. 27.400, established by
5 the Department of Homeland Security, which limits dissemination of CVI to
6 government officials strictly on a need-to-know basis.26 CSBs sweeping
7 requests for [a]ll documentation identifying Alkylation . . . Unit siting hazards,
8 risks, and safety concerns and [a]ll studies, reports, analysis, data, experiments,
9 modeling, technical analysis and specifications related to the same or similar
10 modified hydrofluoric acid27 necessarily implicate CVI protected by CFATS.
11 Fourth, documents associated with Mobil Oil Corporations 1990 Consent Decree
12 with the City of Torrance28 are subject to a protective order that provides that
13 confidential documents shall be used by the parties in this action solely for the
14 purpose of this litigation and for no other purpose. (See Yeh Decl. 22, Ex. A
15 7.) In the interest of comity, courtesy, and federalism, before issuing any order that
16 would effectively modify a state courts protective order, this Court should
17 consider whether it is possible to incorporate terms in its own order which will
18 further the protections originally ordered . . . . See Tucker v. Ohtsu Tire & Rubber
19 Co., 191 F.R.D. 495, 501 (D. Md. 2000).
20
25
21 See Pet. 48d.-f; Yeh Decl. 24. ExxonMobil provided CSB a draft confidentiality
agreement, as Solomon requires before producing its confidential data, but CSB refused to sign it.
22 (Yeh Decl. 24; Olson Decl. 7.)
26
23 The Secretary of Homeland Security designated the Torrance Refinery as bound by the CFATS
as a chemical facility that present[s] high levels of security risk under Section 550 of the
24 Department of Homeland Security Appropriations Act. Pub. L. 109-295 550(a). ExxonMobils
CFATS obligations magnify its concerns over CSBs ultra vires requests. Federal employees
25 only have a need to know if the CVI information is necessary for performance of the
employees official duties. 6 C.F.R. 27.400(e)(2)(i). In this case, CSB, acting outside of its
26 statutory authority cannot be characterized as need-to-know.
27 27
See, e.g., Pet. 48j., 48r.
28
28 See, e.g., Pet. 48h.-i., 48l.
- 23 - 2:17-MC-00066-CBM-PJWX
1 CSBs history of mishandling documents and refusal to engage on the

2 reasonable confidentiality protections ExxonMobil requested only amplify concerns
3 that the agency will not properly protect this confidential information. Thus, this
4 Court should reject any argument that the confidentiality safeguards in CSBs
5 enabling statute are adequate. See Adair, 867 F. Supp. at 1119 (a court can
6 provide additional confidentiality protections beyond those offered by the agency
7 when it concludes that the agency, in the exercise of its discretion, has not provided
8 safeguards sufficient to protect the interests of those at risk).
9 The particular protections that ExxonMobil seeks are neither unreasonable
10 nor unprecedented. The protective order should limit the use of ExxonMobils
11 documents to the Boards investigation into the February incident and prohibit their
12 use for any general hazard study regarding HF or MHF. This provision would not
13 only ensure that CSB acts within the bounds of the statutory authority cited in its
14 subpoenas, but would also be consistent with CSBs prior assurances. In May
15 2016, CSB agreed that certain produced documents would be used only for the
16 investigation of the February 18, 2015 incident. (See Olson Decl. 8, Ex. A.)
17 There is no reason why CSBs previous promises should not apply going forward.
18 Cf. Exxon Corp., 628 F.2d at 77 (modifying Department of Energy (DOE)
19 subpoenas to incorporate the essential confidentiality provisions of [] earlier
20 agreements).
21 ExxonMobil further requests that CSBs discretion to disclose documents in
22 response to FOIA requests be limited as follows: (1) CSB must follow the special
23 predisclosure procedures for CBI outlined in 40 C.F.R. 1601.26(c) and (e) for
24 any FOIA requests for ExxonMobils produced documents, without exception, and
25 (2) the designation of ExxonMobils produced documents under FOIA Exemption 4
26 will last indefinitely. ExxonMobil does not intend to in any way hinder CSBs
27 FOIA obligations. Instead, it merely asks that CSB afford ExxonMobil the full and
28 fair opportunity to be informed and heard before any of its CBI-designated
- 24 - 2:17-MC-00066-CBM-PJWX
1 documents are disclosed. Courts have previously approved of similar restrictions

2 before enforcing administrative subpoenas. See, e.g., Exxon Corp., 628 F.2d at 79;
3 Adair, 867 F. Supp. at 1124. Moreover, ExxonMobils concerns relating to CBI
4 disclosure will not subside over any particular amount of time. Thus, it is only
5 proper to allow these materials to remain exempt from disclosure indefinitely. See
6 40 C.F.R. 1601.26(b) (allowing an extension of the standard 10-year expiration
7 period if the submitter requests, and provides reasonable justification for, a
8 designation period of longer duration).
9 IV. CONCLUSION
10 CSBs Petition to enforce its ultra vires subpoenas should be denied. In the
11 alternative, ExxonMobil requests a protective order as described above.
12
DATED: June 13, 2017 STEVEN J. OLSON
13 OMELVENY & MYERS LLP
14
15
By: /s/ Steven J. Olson
16 Steven J. Olson
17 Attorneys for Respondent
ExxonMobil Oil Corporation
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- 25 - 2:17-MC-00066-CBM-PJWX

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ExxonMobil Petition

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Case 2:17-mc-00066-CBM-PJW Document 19 Filed 06/13/17 Page 1 of 31 Page ID #:218

1 M. RANDALL OPPENHEIMER (S.B. #77649)

7 Attorneys for Respondent

20 Peters v. United States,

1 under reasonable conditions to protect the companys Confidential Business

1 ExxonMobil requests a protective order that mirrors the reasonable conditions

1 citing the potential effects of HF exposure and questioning whether modified

1 regarding the September incident, even though it lacks independent authority to do

1 When ExxonMobil asked CSB for additional information in order to develop

1 B. Administrative Subpoenas Issued Beyond a Federal Agencys

1 Subsection C investigation cannot be taken lightlyit embraces the power to

1 substantial property damages.). Instead, CSBs regulations echo the commonsense

1 causes so that similar events might be prevented. (emphasis added)).

1 inquiry into potential race discrimination is not a reasonable expansion of [the

1 in September of a small volume of HF is even remotely relevant to the February 18

1 CSBs history of mishandling documents and refusal to engage on the

1 documents are disclosed. Courts have previously approved of similar restrictions

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