Rise in Chemical Accidents Should Augment Safety Board Response

Reports of accidental releases involving hazardous chemicals at fixed facilities in the US reached all-time highs during the 2023 federal fiscal year, while probes of these incidents reached all-time lows. Meanwhile, the agency charged with oversight and investigative powers quietly signaled a shift in priorities heading into 2024 and beyond.

Chartered in the Clean Air Act Amendments of 1990, the Chemical Safety and Hazard Investigation Board is tasked with investigating accidental releases involving deaths, serious injuries, or damages over $1 million. While it has no independent regulatory authority, the CSB is typically seen as an effective bully pulpit for chemical safety improvements across the country, as its reports contain recommendations aimed at federal regulators, individual companies, trade groups, and state and local governments.

Through quarterly raw data releases, the CSB reported that in fiscal 2023, the number of reportable incidents increased by 51% over the previous year, while the number of incidents involving serious injuries increased by 11%, and the number of chemical accidents involving deaths increased by a notable 78%.

While more incidents would seem to beget more federal probes, CSB didn’t deploy to a single incident in fiscal 2023 and only deployed once in fiscal 2022. Historically, the CSB has typically deployed to four to six major accidents a year. Due to staffing issues, turnover, and a lack of presidentially appointed and congressionally confirmed board members, unfinished investigations got backlogged. This has attracted the attention of Congress, environmentalists, and community activist groups.

After the confirmations of board members Steve Owens, Sylvia Johnson, and Kathryn Sandoval, the CSB is finally armed with a quorum—and a unified voice, as the entire board now has the rare distinction of all being term appointees of President Joe Biden. The board has prioritized clearing backlogged investigations, at the expense of launching new deployments and probes of recent incidents.

First, the agency has made strides toward clearing its backlog of 17 open investigations, some dating as far back as 2016. These investigations and their findings contain key safety recommendations spanning nearly every industry and represent a renewed commitment to the CSB’s mission to protect workers and the environment from accidental releases of hazardous materials. This achievement helped restore stakeholder confidence in the beleaguered agency.

But the focus on the backlog of stale files had a cost. Because the agency has only probed a single incident over the past two fiscal years, it has largely ignored over 200 accidents that industry reported to it during that span. This leaves the agency in an unprecedented position: finally possessing a great amount of investigative capacity, but without any investigations to manage.

The obvious conclusion is that the CSB will be much less conservative with investigative deployments in the coming year. On closer review, the agency has quietly disclosed exactly the type of incidents it will review in 2024.

Earlier in 2023, the board updated its Drivers of Critical Chemical Safety Change without fanfare. This program identifies the most critical chemical safety improvements needed to protect both people and the environment. CSB staff and board members use this program to target outreach opportunities and optimize the agency’s limited resources to address the most critical chemical hazards.

Newly appearing on the priority list are the topics of reactive hazards, inherently safer design, and a slew of subtopics aiming to focus the agency on fence line community impact and extreme weather.

Inherently safer design aims to avoid or reduce hazards up front instead of relying on managing and controlling those hazards after the fact. This is often accomplished at the stages of design safety reviews and risk assessments of project designs. Essentially, the CSB is interested in probing incidents where it suspects a less hazardous substitute process may be identifiable but wasn’t implemented.

A reactive hazard is an uncontrolled chemical reaction in industrial processes and has been of interest to the CSB for decades as a serious harm to people, property, and the environment. A recent example of a reactive hazard—paired with an extreme weather component—is the 2020 Biolab Lake Charles chlorine release, where rainwater from Hurricane Laura chemically reacted with stored chemicals, causing a potentially deadly chlorine fire and fog that engulfed the surrounding fenceline community and interstate for 28 hours.

The CSB’s outlook trajectory has never been clearer. Federal chemical incident investigators will undoubtedly be eager to dust off their deployment gear, and incidents rooted in these new priorities can expect to be in the crosshairs.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

David LaCerte is special counsel at Baker Botts with experience in executive and public policy for state and federal government agencies.

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