More than a decade after a report from the Government Accountability Office criticized the Chemical Safety and Hazard Investigation Board (CSB) for “investigation gaps,” the CSB is now taking meaningful steps to close the gaps the GAO identified.
Under the Clean Air Act, the CSB was to “establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigatory jurisdiction.” Decades after the agency’s creation, the CSB finally adopted its incident reporting rule in early 2020.
The CSB’s reporting rule requires prompt reports to the CSB from owners or operators of stationary sources that experience an accidental release of a regulated substance or extremely hazardous substance that results in a death, serious injury, or substantial property damage. The report is required within eight hours of an incident. An online reporting form is available at this link. We further understand that the CSB intends to release a guidance document interpreting this rule in response to comments that the rule is vague and not always easily applied.
The issuance of the rule can best be described as having been done reluctantly. It ultimately took a federal court order in 2019 to force the agency to issue the final reporting regulations.
Expanding Desk Investigations
More recently, we have seen an apparent effort by the CSB to respond to another long-standing criticism of the agency—its relatively limited number of investigations. Informally referred to as “desk investigations” by the agency’s professional staff, this new effort seems based on a sequential, and sometimes prioritized, review of incidents reported to the agency under the incident reporting rule.
We note that staff has received some incident reports that, upon the CSB’s review, do not meet the threshold criteria for reporting, and, as a result these incidents were not further investigated. Similarly, if an incident is the subject of investigation by another agency (e.g., National Transportation Safety Board), the CSB would decline to undertake an investigation.
Desk investigations begin with written requests for information that are focused on the company’s own investigation of the incident, which generally is required under the OSHA Process Safety Management standard and the EPA Risk Management Program rule.
These requests seek the company’s “internal investigation file,” including but not limited to, the investigation report with proposed recommendations (corrective actions), alarm and event logs, causal analysis, witness statements, interview notes, photographs, video files, piping and instrumentation diagrams, process flow diagrams, safety data sheets, and management of change records. They also include medical information, operating procedures, operating manuals, process hazard analysis, site and corporate policies, and training records.
The first request typically solicits contact information for OSHA or EPA representatives investigating the incident. Lastly, the CSB requests information for employee representatives if employees at the site are represented by a collective bargaining unit. We understand that the CSB presently has approximately 30 open desk investigations. We know of at least two investigations that have included a second request for information, which goes beyond the content of the company’s internal investigation file.
In one instance, the second request sought detailed information to assess the factual sufficiency and technical bases of the findings, conclusions, and recommendations arising from the company’s internal investigation.
The process for desk investigations has not been formalized, meaning that they are not the subject of a CSB order that would formally establish a procedure. It also is unclear how the agency will ultimately use the information gathered as a result of these office-based reviews.
We have been told, however, that desk investigations may not typically result in the development of public reports or include the issuance of recommendations. The possibility exists, however, that information gathered during a desk investigation could cause the agency to open a full, public investigation.
Post-Incident Probes Will Be More Important
It is important to acknowledge that this effort is playing out against the backdrop of the new presidential administration that certainly will be more supportive of the CSB as compared to the previous administration. It is likely that these desk investigations will continue and perhaps become more formalized and expanded. The scope and conduct of a company’s post-incident internal investigations, therefore, will become even more important given the potential for external scrutiny.
For this reason, it is imperative that companies consider key issues implicated by such investigations, including team composition, the role of employee representatives, the use of external technical experts, and issues related to the role of counsel and assertions of legal privilege.
The resulting report and underlying work product have a new and important constituent who has often been suspicious and critical of company efforts when it comes to process safety performance and accident prevention.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Mark L. Farley and Devon E. Downs are founding partners of Farley & Partners LLP, a boutique law firm in Houston with a nationally recognized workplace safety and crisis management practice. They have directed the response to some of the most significant industrial accidents in the U.S.