Evidence Rule Stirs Up Debate

The independent federal agency charged with investigating the root cause of industrial chemical accidents has proposed a rule that would require businesses to ensure the preservation of crucial evidence after a significant explosion or spill. Chemical manufacturers, however, maintain that the plan would be impractical and burdensome in real-world emergency situations. They also charge that it exceeds the agency's statutory authority as laid out by Congress.

The regulation would empower the Chemical Safety & Hazard Investigation Board (CSB) to issue an order directing the owner or operator of an accident site to take various precautions to protect chemical and physical evidence as well as documents, records, and electronic data. "Owners/operators are required by this regulation to exercise care to ensure that the accident scene and relevant evidence found therein are adequately protected from alteration," the proposal states.

"The reason the rule is needed is that dead men tell no tales," says Daniel M. Horowitz, director of CSB's Office of Congressional, Public & Board Affairs. "Physical evidence is the key to conducting effective root-cause investigations, which is what we do. Evidence needs to be preserved, and then it needs to be analyzed."

Although most companies cooperate with the board's investigations and take steps to preserve evidence following an accident, Horowitz says there have been a handful of cases in which sites were altered or cleaned up "in a way that wasn't properly thought through and that hampered our investigation. We need to make sure that there is a clear process in place for how evidence is going to be protected."

Under the proposed rule, the CSB investigator-in-charge would be authorized, when appropriate, to issue a written Notice of Accident Investigation Initiation & Order To Preserve Evidence. The measure would provide procedures for preserving evidence in the event of "qualifying emergencies," including operations related to rescue, firefighting, and environmental protection.

Horowitz says the regulation would not restrict the activities of other federal, state, or local authorities or emergency responders. In addition, he says the rule applies only to accidents to which CSB sends or intends to deploy investigators and only in cases where the owner or operator receives a written preservation notice from CSB. "Unless a company receives a notice directing the preservation of a site, this rule imposes no duty on anybody," Horowitz says. "So for all the thousands of companies out there operating normally, this rule has no impact whatsoever. Also, this rule does not force the shutdown of any facility."

CSB Chairman Carolyn W. Merritt believes the regulation would likely be used in only a handful of cases each year where there is a concern about the integrity of the evidence needed for an investigation. The preservation of evidence can often be ensured through binding agreements among all the relevant parties at an accident site, she noted in a statement announcing the proposal in January.

"In other cases, however, the rule will be necessary to protect the federal government's authority to conduct a thorough root-cause investigation," Merritt explained. "Even in those cases, if the company enters into an agreement governing the handling of key evidence, we will typically be in a position to lift the order to preserve."

Horowitz says the evidence preservation rule was not prompted by any specific event and has been on CSB's rulemaking agenda for several years. "In fact, it's one of the five enumerated duties of the board in our legislative history," he notes. CSB's mandate is to determine the underlying cause of chemical plant accidents, similar to the way the National Transportation Safety Board investigates airplane crashes. CSB does not issue citations or fines, but it does make safety recommendations to industry, labor, and federal regulatory agencies.

The 1990 Clean Air Act amendments, which authorized the creation of the chemical safety board, state that one of its duties is "to establish requirements for reporting accidents, including measures to preserve evidence which may substantiate the cause or probable cause of the accident."

CSB's ability to ensure evidence preservation at accident sites has been somewhat uneven. For example, after an explosion and fire killed 15 workers at BP America's Texas City, Texas, refinery in March 2005, CSB investigators were unable to gain access to the site for eight days. Plaintiffs' attorneys, labor activists, and others expressed concern that valuable clues to what caused the nation's worst refinery accident in more than a decade could be lost or, even worse, tampered with and corrupted.

But Horowitz says the delay was caused by structural hazards and a benzene leak that resulted from the blast. "BP cooperated with our investigation, so there was no problem about putting in place measures to protect the evidence," he says. "There was no issue about us getting in, and BP was eager to assist us."

However, CSB has had problems with evidence preservation at accident sites on several occasions in recent years. For instance, in August 2004, investigators went to the site of a small explosion and fire involving a bag of ammonium nitrate at C&G Manufacturing, an aircraft parts remanufacturing facility in Ferris, Texas. "When our investigators got there, the place had been cleaned up," Horowitz says. "In the end, we opted not to pursue a full-scale investigation in that case for a variety of reasons. But had we gone forward, the fact that the site had been disturbed and cleaned up would have posed a significant problem."

In a few other cases, the CSB official says there have been unauthorized entries into sites. "There was an unauthorized entry during our Formosa investigation a couple of years ago that the company knew nothing about," Horowitz says, referring to the April 2004 explosion and fire that killed five workers at Formosa Plastics Corp.'s polyvinyl chloride plant in Illiopolis, Ill. "There just needs to be a procedure in place for how these sites are going to be treated, and that's really the goal of our rule."

At first glance, the four-page proposal appears to be a routine administrative rulemaking, simply requiring that evidence must be preserved. But in the recently concluded public comment period, chemical industry trade associations, federal regulatory agencies, and legal organizations voiced varying degrees of opposition.

Echoing criticisms lodged by several other industry organizations, the Synthetic Organic Chemical Manufacturers Association (SOCMA) expressed concern in its comments about the rule's scope, feasibility, and potential impact. Robert D. McArver Jr., director of government relations for SOCMA, questioned in particular whether Congress gave CSB "the broad, substantive rule-making authority needed" to issue such a proposal.

"CSB was deliberately established as an independent investigatory body, not a regulatory agency," McArver wrote. "The nonregulatory role of CSB is a critical element in its effectiveness and must be preserved." He also observed that facilities that experience an emergency release are already subject to multiple regulatory reporting and contingency plan requirements. "SOCMA believes that a very high standard must be met to justify imposition of yet another layer of 'ASAP' reporting requirements to yet another regulatory authority," he told CSB.

The trade group for the batch and custom chemical manufacturing industry also voiced concern that the rule would impede and delay first-response activities during an emergency. "It is counterproductive to encumber key personnel with further reporting and 'approval-to-proceed' requirements," McArver said. "Real-world conditions will often make carrying out the obligations imposed by the proposed rule dangerous, if not impossible, during an emergency situation involving human injury or death, fire, site instability, or the potential for additional release and further injury."

The Fertilizer Institute complained that the rule is ill-defined and said its vagueness would create uncertainty among the regulated community. "Given the regulatory compliance requirements placed on industry, including the potential enforcement and criminal penalties, these regulations do not provide any benchmarks or other metrics so that an owner/operator can be reasonably sure of compliance and are, therefore, arbitrary and capricious by definition," wrote William C. Herz, the institute's vice president for scientific programs.

The American Chemistry Council (ACC) said the proposed regulation ignores the possibility that the duty it would impose to preserve evidence may compromise an individual employee's protection against self-incrimination under the Fifth Amendment to the Constitution. "Individuals should not be required to waive their constitutional rights to avoid enforcement action by CSB," wrote Michael P. Walls, managing director of regulatory and technical affairs for ACC. He recommended that the board revise the proposal to ensure that an individual may invoke Fifth Amendment rights without being threatened with federal or state prosecution.

"Contrary to what Congress intended, the generalities in the proposal itself seem to reflect a disconnect between the investigative process and day-to-day realities of operating an industrial facility," Walls added. "It is unfortunate that CSB did not consult with affected industries in the proposal development stage, and ACC hopes that CSB will do so before finalizing a rule about which so many questions remain."

Keller & Heckman LLP, a law firm that represents trade associations and other industrial clients, asserted that the proposal "would effect a fundamental if not draconian change in the current approach to CSB investigations." According to the firm's comments, the rule would give CSB the ability to issue "self-executing 'freeze-in-place' orders that are likely to substantially interfere with emergency response efforts and to greatly hinder, if not prevent, site-recovery efforts and the ability of the affected site to maintain or resume normal business operations."

The Occupational Safety & Health Administration, which conducts its own inspections after chemical accidents to determine compliance with specific regulations, urged the chemical safety board to rewrite its proposal to avoid any implication that the rule would bind or interfere with other government agencies that have public health and safety responsibilities.

"From the language in the CSB proposal, the operator could mistakenly believe that the regulation limits its duty to cooperate with an OSHA investigation and that it must notify CSB and await its response before releasing evidence to OSHA," wrote outgoing Acting Assistant Secretary of Labor Jonathan L. Snare. "A practice of that kind would impair OSHA's ability to conduct a sustained and timely investigation."

On the other hand, the measure received support from public interest groups and organized labor. For instance, OMB Watch said adoption of the rule would "minimize the disturbing, and in many cases prevent the destruction, of important evidence" in the aftermath of chemical accidents.

"The bottom line is that the rule is a necessary component of the CSB investigation process that will lead to improvements in risk management, accident prevention, and emergency response throughout the country," wrote Sean Moulton, director of federal information policy for the watchdog group. "In the end, this will better protect the lives of those living around chemical facilities and the workers at these facilities."

The International Chemical Workers Union Council (ICWUC) also endorsed the proposal, but it recommended that CSB draft additional language to explicitly protect workers from corporate retaliation for providing information to investigators after an accident. "We believe that in the vast majority of circumstances this may not arise, but it is important for this protection to be clearly spelled out in order for workers to be completely forthcoming in assisting with CSB investigations," said ICWUC President Larry V. Gregoire.

Despite the criticism, CSB believes it has both "the authority and the duty" to issue an evidence preservation rule, Horowitz says. "This rule does not impose any regulatory burdens. It describes procedures for the handling of evidence. It is a modest rule and is discussed in our legislative history as something that the board needs to do." He also insists the regulation would not affect the work of emergency responders and clearly allows facilities to take steps to ensure the safety of a site after an accident.

"Common sense dictates that you rescue people and put out the fires," Horowitz says. "Once that is done, you preserve the evidence in as pristine a condition as possible so that it doesn't happen again." He says the proposal states that emergency response and mitigation activities take precedence over preservation of evidence.

Horowitz says safety-conscious companies recognize the importance of maintaining the integrity of accident evidence. "They want to know what happened at these sites just as we do," he notes. "It's simply a matter of making sure that the federal government can do an effective root-cause investigation and make the findings known to the rest of industry so that these accidents don't recur elsewhere."

The three-member chemical safety board will vote on the proposed rule after evaluating the public comments, but no timetable has been set. "We have a lot of comments to go through, and we take them all seriously," Horowitz says. "To the extent that changes or tweaks are warranted, we'll make those changes, and then the board will decide whether to issue the rule and in what form."