United States v. Exxon Mobil Corporation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-55481

Petitioner-Appellant,

D.C. No.

v. 2:17-mc-00066-

CBM-PJW

EXXON MOBIL CORPORATION,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted November 4, 2019

Pasadena, California

Filed December 9, 2019

Before: Mary M. Schroeder and Michelle T. Friedland,

Circuit Judges, and Lee H. Rosenthal, * District Judge.

Per Curiam Opinion

*

The Honorable Lee H. Rosenthal, Chief United States District

Judge for the Southern District of Texas, sitting by designation.

2 UNITED STATES V. EXXON MOBIL CORP.

SUMMARY **

Subpoenas

The panel reversed the district court’s order denying the

United States Chemical Safety and Hazard Board’s petition

to enforce five requests, made pursuant to administrative

subpoenas, issued against Exxon Mobil Corporation

following an explosion and chemical release at an

ExxonMobil refinery.

The Board challenged only portions of five of the denied

requests that related to the alkylation unit and the modified

hydrofluoric acid stored there. The requests sought

information that was relevant to the February 2015

accidental chemical release.

The panel agreed with the Board’s position that its

requests for information and documents related to the

alkylation unit and the modified hydrofluoric acid stored

there were related to its investigation because the risks of

damage to the alkylation unit and an accidental release of

modified hydrofluoric acid were among the “facts,

conditions, and circumstances” of the February 2015

accidental release from the adjacent fluid catalytic cracking

unit.

The panel held that a review of the specific disputed

requests confirmed that each sought material that might cast

light on the Board’s investigation into the February 2015

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. EXXON MOBIL CORP. 3

release. The panel reversed the challenged portions of the

district court’s ruling that the subpoena requests were

unenforceable and remanded for further proceedings.

COUNSEL

Jeffrey B. Clark (argued), Assistant Attorney General;

Garrett Coyle, Mark R. Haag, and John E. Arbab, Attorneys;

Eric Grant, Deputy Assistant Attorney General;

Environment & Natural Resources Division, United States

Department of Justice, Washington, D.C.; Raymond Porfiri,

U.S. Chemical Safety and Hazard Investigation Board,

Washington, D.C.; for Petitioner-Appellant.

Steven J. Olsen (argued), Matthew R. Cowan, Lauren F.

Kaplan, and John B. Sprangers, O’Melveny & Myers LLP,

Los Angeles, California; Hannah Y. Chanoine, O’Melveny

& Myers LLP, New York, New York; for Respondent-

Appellee.

Xavier Becerra, Attorney General; Christie Vosburg,

Supervising Deputy Attorney General; James R. Potter,

Deputy Attorney General; Office of the Attorney General,

Los Angeles, California; for Amicus Curiae California

Attorney General.

Bayron T. Gilchrist, General Counsel; Barbara B. Baird,

Chief Deputy Counsel; Daphne Hsu, Senior Deputy District

Counsel; South Coast Air Quality Management District,

Diamond Bar, California; for Amicus Curiae South Coast

Air Quality Management District.

4 UNITED STATES V. EXXON MOBIL CORP.

OPINION

PER CURIAM:

After an explosion and chemical release at an

ExxonMobil refinery, the United States Chemical Safety and

Hazard Board issued seven subpoenas with a total of

380 requests. ExxonMobil refused to comply with 56 of the

requests. The district court held a hearing and, after

argument, granted the Board’s petition to enforce about half

of the disputed requests, but declined to enforce 27, one in

part. The Board appeals the district court’s denial of its

petition to enforce only five of those 27 requests. We hold

that, although the district court did an admirable job, as

evidenced by the narrow scope of this appeal, it erred in

finding these five requests unenforceable. We reverse and

remand.

I.

On February 18, 2015, an explosion in the fluid catalytic

cracking unit in ExxonMobil’s Torrance, California oil

refinery caused a release of flammable hydrocarbons and ash

mixed with metal, fiberglass, and glass wool debris into the

air. Four workers were injured, and ExxonMobil closed the

fluid catalytic cracking unit for 15 months for repair. The

explosion caused a 40-ton piece of debris from the fluid

catalytic cracking unit to fly approximately 100 feet, landing

in the adjacent alkylation unit. The debris landed within five

feet of a “settler,” or tank, filled with modified hydrofluoric

acid, a highly corrosive liquid that is toxic if released. The

Torrance refinery used a modified form of hydrofluoric acid

believed to be safer than the pure form, but less widely used.

The U.S. Chemical Safety and Hazard Investigation

Board is authorized to “investigate (or cause to be

UNITED STATES V. EXXON MOBIL CORP. 5

investigated), determine and report to the public in writing

the facts, conditions, and circumstances and the cause or

probable cause of any accidental release resulting in a

fatality, serious injury or substantial property damages.”

42 U.S.C. § 7412(r)(6)(C)(i). An “accidental release” is “an

unanticipated emission of a regulated substance or other

extremely hazardous substance into the ambient air from a

stationary source.” 42 U.S.C. § 7412(r)(2)(A). As part of a

§ 7412(r)(6)(C) investigation into an accidental release, the

Board may:

hold such hearings, sit and act at such times

and places, administer such oaths, and

require by subpoena or otherwise attendance

and testimony of such witnesses and the

production of evidence and may require by

order that any person engaged in the

production, processing, handling, or storage

of extremely hazardous substances submit

written reports and responses to requests and

questions within such time and in such form

as the Board may require.

42 U.S.C. § 7412(L)(i).

The Board issued seven subpoenas containing

380 document and information requests. ExxonMobil

complied with most, producing 65 witnesses and nearly

137,000 pages of documents, but refused to comply with

56 requests, arguing that they exceeded the Board’s

investigatory and subpoena authority.

The Board filed a petition to enforce the administrative

subpoenas in the United States District Court for the Central

District of California. The court considered each of the

56 requests ExxonMobil challenged, finding 29 enforceable,

6 UNITED STATES V. EXXON MOBIL CORP.

26 unenforceable, and one enforceable in part. The district

court reasoned that “many of the [Board’s] requests seek

evidence that is relevant under [the] generous standard” that

applies to enforcement of administrative subpoenas, but

others “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 this appeal, the Board challenges only portions of five

of the denied requests. The requests at issue all relate to the

alkylation unit and the modified hydrofluoric acid stored

there. The disputed portions of the requests are as follows:

1SUBDOC01: All risk assessments

performed for . . . the alkylation unit, . . . for

the past fifteen years . . . .

1SUBINT01: Provide information related to

the vendors and manufacturers of the

modified hydrofluoric acid used in the

alkylation unit including a list of vendors,

manufacturers, and quantity purchased

annually, dates and contact information.

3SUBDOC19: All studies, reports, analysis,

data, experiments, modeling, technical

analysis and specifications related to the

same or similar modified hydrofluoric acid

used in the alkylation unit at the time of the

February 18 incident including but not

limited to: records provided or shown to the

City of Torrance or their representatives,

ExxonMobil or third party records, records

provided by the manufacturer or vendor,

UNITED STATES V. EXXON MOBIL CORP. 7

records relating to the documented or

asserted degree of [hydrofluoric acid] vapor

suppression for modified [hydrofluoric acid],

and industry and/or Mobil/ExxonMobil

studies, experiments, modeling of modified

[hydrofluoric acid] and its effectiveness in

suppressing vapor compared to unmodified

[hydrofluoric acid].

3SUBDOC20: All records related to the

volume and concentration of hydrofluoric

acid contained in the each of the two

alkylation unit [hydrofluoric] acid settlers at

the time of the February 18 incident.

3SUBDOC43: All documentation

identifying Alkylation . . . Unit siting

hazards, risks, and safety concerns.

Documentation includes calculations,

recommendations, resolutions, preventative

measures implemented, mitigate measures

implemented, plot plans, simulations, and

toxic, flammable, and explosive hazards

identified.

II.

We review a district court’s decision not to enforce an

administrative subpoena for abuse of discretion. McLane

Co. v. EEOC (“McLane I”), 137 S. Ct. 1159, 1164 (2017).

As part of abuse-of-discretion review, we determine de novo

whether the district court identified the correct legal rule.

United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.

2009). A district court ruling “predicated on an erroneous

view of the legal standard” is an abuse of discretion. EEOC

8 UNITED STATES V. EXXON MOBIL CORP.

v. McLane Co. (“McLane II”), 857 F.3d 813, 815 (9th Cir.

2017); see also McLane I, 137 S. Ct. at 1168 n.3.

III.

“The scope of the judicial inquiry in an . . . agency

subpoena enforcement proceeding is quite narrow.” EEOC

v. Fed. Exp. Corp., 558 F.3d 842, 848 (9th Cir. 2009)

(quoting EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071,

1076 (9th Cir. 2001)). “As long as the evidence is relevant,

material, and there is some ‘plausible’ ground for

jurisdiction . . . , the court should enforce the subpoena.” Id.

(quoting EEOC v. Children’s Hosp. Med. Ctr., 719 F.2d

1426, 1430 (9th Cir. 1983) (en banc)). The relevance

requirement is “not especially constraining,” but is instead

“‘generously construed’ to ‘afford[] the [agency] access to

virtually any material that might cast light on [the matter

under investigation].’” Id. at 854 (quoting EEOC v. Shell

Oil Co., 466 U.S. 54, 68–69 (1984) (first alteration in

original)).

The parties appropriately agree that the February 2015

explosion was an “accidental release” within the Board’s

§ 7412(r)(6)(C)(i) investigative authority; that the Board had

authority under § 7412(r)(6)(L) to subpoena relevant

documents and information; and that the Board’s subpoenas

were 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. See

42 U.S.C. § 7412(r)(6)(C)(i). The parties’ dispute in the

district court was over whether 56 requests in the subpoenas

sought information that is in fact relevant to the “facts,

conditions, and circumstances and the cause or probable

cause” of the February 2015 accidental release.

UNITED STATES V. EXXON MOBIL CORP. 9

On appeal, the parties focus on the five challenged

requests in more detail than in the district court, where there

were many more requests in dispute. The parties now

present their primary dispute over the five requests’ validity

as one of statutory interpretation.

The parties agree that no modified hydrofluoric acid was

released in the February 2015 explosion and release. But the

parties also agree that the February 2015 explosion in the

fluid catalytic cracking unit that caused the accidental

release also caused the 40-ton piece of debris to land in the

alkylation unit, five feet from a settler containing the

modified hydrofluoric acid. The Board argues that its

requests for information and documents related to the

alkylation unit and the modified hydrofluoric acid stored

there are relevant to its investigation because the risks of

damage to the alkylation unit and an accidental release of

modified hydrofluoric acid were among the “facts,

conditions, and circumstances” of the February 2015

accidental release from the adjacent fluid catalytic cracking

unit. ExxonMobil responds that because there was no

damage to the alkylation unit or release of modified

hydrofluoric acid, the requests were relevant to a potential

future release and not to the “facts, conditions, and

circumstances” of the release that did occur.

We agree with the Board. In our view, ExxonMobil’s

position on appeal does not meaningfully differ from the

argument it presented to the district court that “facts,

conditions, and circumstances” were limited to those

relevant to “determining the cause or probable cause” of the

accidental release. The district court correctly rejected that

argument, ruling that ExxonMobil’s interpretation would

make the words “facts, conditions, and circumstances”

superfluous. We agree that such an interpretation would fail

10 UNITED STATES V. EXXON MOBIL CORP.

to give any meaning to the key phrase “facts, conditions, and

circumstances.” But the district court’s conclusion that the

five subpoena requests relating to the alkylation unit and the

modified hydrofluoric acid stored there were not relevant to

the February 2015 explosion and accidental release in effect

imported the causation limitation back into the relevance

determination. ExxonMobil illustrates this by arguing on

appeal that the requested information and documents about

the modified hydrofluoric acid stored in the alkylation unit

are not relevant because neither that unit nor the acid were

“involved in circumstances that led to the over-

pressurization and accidental release” in the fluid catalytic

cracking unit.

“When interpreting a statute, we must start with the

language of the statute.” Metro One Telecomms., Inc. v.

Comm’r, 704 F.3d 1057, 1061 (9th Cir. 2012). Section

7412(r)(6)(C)(i) authorizes the Board to “investigate . . . the

facts, conditions, and circumstances and the cause or

probable cause of any accidental release.” The Board may

investigate “the facts, conditions, and circumstances” of a

release, in addition to, and separately from, its “cause or

probable cause.” The Board is not limited to the “facts,

conditions, and circumstances” that caused the accidental

release. The Board should look as well to the effects and the

potential harm, were a similar incident to occur.

The presence of two tanks full of toxic chemicals on the

site of the explosion, very close to where debris from that

explosion landed, is among the “circumstances” of the

explosion. The breadth of the term “circumstances”

supports this result, by authorizing the Board to investigate

not only the causes of an explosion, but also its effects. The

text of Section 7412(r)(6)(C)(i) compels this result, which is

reinforced by viewing that provision within the broader

UNITED STATES V. EXXON MOBIL CORP. 11

context of the statute. For example, the Board’s duty to

“issue periodic reports to the Congress, Federal, State and

local agencies” and in so doing to “recommend[] measures

to reduce the likelihood or the consequences of accidental

releases,” § 7412(r)(6)(C)(ii), bears on what information is

included within the Board’s Section 7412(r)(6)(C)(i)

investigatory authority. 1 Similarly, the statute’s objective of

“minimiz[ing] the consequences of any” accidental release,

§ 7412(r)(1), confirms that an investigation into

consequences that in fact arose, for the purpose of preventing

similar and worse consequences in the future, is consistent

with the statute’s overall purpose. 2

1

We need not decide whether Section 7412(r)(6)(C)(ii) conferred

an independent source of subpoena authority to the Board in this case.

We merely cite this provision because it sheds light on the reasons why

Congress granted investigatory power to the Board under Section

7412(r)(6)(C)(i) and thus on the intended scope of that investigatory

power.

2

Section 7412(r)(6)(F) is not to the contrary. Under that provision,

the Board may “conduct research and studies with respect to the potential

for accidental releases” under 42 U.S.C. § 7412(r)(6)(F). The Board’s

subpoena power under Section 7412(r)(6)(L) does not extend to research

and studies of potential releases under Section 7412(r)(6)(F).

ExxonMobil argues that the Board could investigate a possible future

release of modified hydrofluoric acid under its Section 7412(r)(6)(F)

authority—without subpoena power—but that allowing the Board to

investigate potential releases under Section 7412(r)(6)(C)(i) would make

Section 7412(r)(6)(F) superfluous. But when a potential release is part

of the “facts, conditions, and circumstances” of an actual release, the

statute does not prevent the Board from using Section 7412(r)(6)(C)(i)

and the subpoena power under Section 7412(r)(6)(L) to investigate.

Section 7412(r)(6)(F)’s lack of subpoena power would constrain the

Board’s authority if there were only a potential release, which is not the

case here.

12 UNITED STATES V. EXXON MOBIL CORP.

A review of the specific disputed requests confirms that

each seeks material that “might cast light on” the Board’s

investigation into the February 2015 release. See McLane I,

137 S. Ct. at 1169 (quoting Shell Oil, 466 U.S. at 68–69).

Request 1SUBDOC01 asks, in relevant part, for all risk

assessments for the alkylation unit from the past 15 years.

The Board explained that the information generally

“tend[ed] to show how Exxon[Mobil] identified hazards and

what safeguards Exxon[Mobil] implemented to prevent

incidents like the February 2015 explosion.” Because the

alkylation unit was impacted by the explosion and accidental

release, narrowly escaping significant damage to the settler

containing modified hydrofluoric acid, the risks presented

by that unit and the steps taken to minimize them were part

of the facts, conditions, and circumstances of the accidental

release. Although the time period requested is extensive, it

is appropriate in light of the age of the refinery, and the

equipment installed and modified during that period.

Request 1SUBINT01 asks for information on the

vendors and manufacturers of the modified hydrofluoric acid

in the alkylation unit, “including a list of vendors,

manufacturers, and quantity purchased annually, dates and

contact information.” The Board explained that the

“vendors and manufacturers likely have information about

the risks associated with the modified hydrofluoric acid used

in the alkylation unit . . . [that can] show the potential

consequences of a release of modified hydrofluoric acid,

which nearly occurred in the February 2015 explosion.”

This information is related to the modified hydrofluoric acid

stored in the alkylation unit at the time of the explosion and

accidental release. While no modified hydrofluoric acid was

released, its characteristics and qualities, including its

volatility and toxicity, were among the “circumstances” of

UNITED STATES V. EXXON MOBIL CORP. 13

the accidental release, which included the 40-ton flying

piece of debris that landed five feet from a settler holding the

acid. The information sought in the subpoena request was

relevant to the facts, conditions, and circumstances of the

accidental release.

Request 3SUBDOC19 asks for “[a]ll studies, reports,

analysis, data, experiments, modeling, technical analysis and

specifications related to the same or similar modified

hydrofluoric acid used in the alkylation unit at the time of

the February 18 incident,” including information about “the

documented or asserted degree of [hydrofluoric acid] vapor

suppression for modified [hydrofluoric acid], and . . . its

effectiveness in suppressing vapor compared to unmodified

[hydrofluoric acid].” The Board justified this request as

relevant because it “tend[s] to show the integrity, security,

and risks of the modified hydrofluoric acid used in the

alkylation unit, which was nearly released in the February

2015 explosion.” As with Request 1SUBINT01, the risks

posed by the modified hydrofluoric acid were among the

“circumstances” of the accidental release, and the subpoena

request is relevant to determining them.

Request 3SUBDOC20 asks for documents and

information related to “the volume and concentration of

hydrofluoric acid contained in the each of the two alkylation

unit [hydrofluoric] acid settlers at the time of the February

18 incident.” The conditions of the alkylation unit and the

settlers storing the modified hydrofluoric acid on the day of

the explosion further illuminate the facts, conditions, and

circumstances of the accidental release, making the

requested documents and information relevant.

Request 3SUBDOC43 asks for documents and

information related to “siting hazards, risks, and safety

concerns” of the alkylation unit. As with Request

14 UNITED STATES V. EXXON MOBIL CORP.

3SUBDOC20, the risks posed by the alkylation unit’s

location within the refinery were relevant to the facts,

conditions, and circumstances of the accidental release.

We recognize that the district court faced the difficult

task of evaluating 56 subpoena requests, including some

with component parts. The fact that the Board appealed only

five of the 27 denied requests speaks to that careful

consideration and work. But to the extent that the district

court in effect interpreted the Board’s legal authority to

investigate as limited to “facts, conditions, and

circumstances” that bore on the cause or probable cause of

the accidental release, it abused its discretion. Correctly

interpreting the Board’s statutory authority and applying the

generous relevance standard, the five requests whose denial

the Board appealed are relevant to the Board’s investigation

of the February 2015 accidental release. By concluding

otherwise, the district court adopted “an erroneous view of

the legal standard” governing the Board’s authority in

declining to enforce these five requests. See McLane II,

857 F. 3d at 815.

IV.

We reverse the challenged portions of the district court’s

ruling that subpoena requests 1SUBDOC01, 1SUBINT01,

3SUBDOC19, 3SUBDOC20, and 3SUBDOC43 were

unenforceable, and remand for further proceedings

consistent with this opinion.

REVERSED and REMANDED.