The U.S. Chemical Safety and Hazard Investigation Board (CSB) recently proposed a new rule that would require plant owners and operators to preserve critical evidence after major spills or explosions. The agency believes that companies under investigation have, on occasion, altered or handled evidence from a chemical accident in a way that hampers a thorough investigation. CSB is an independent federal agency charged with investigating the root causes of industrial chemical accidents, and making safety recommendations, similar to the way that the National Transportation Safety Board investigates airplane crashes.

The CSB's Jan. 4 proposed rule would establish several rudimentary procedures to preserve evidence and create a chain of evidence trail should the accident site become disturbed. The end goal is the preservation of information that is critical for determining the cause of the accident, which in turn helps other facilities prevent accidents.

First, the rule would allow CSB to send an "evidence preservation notice" to an accident site, which the owner/operator would have to post in a conspicuous place, such as the area immediately adjacent to the accident site. The proposal would also require the owner/operator to notify the CSB as soon as possible when it becomes necessary to disturb an accident scene. Notification of CSB is intended to allow the agency to comment, take other appropriate actions, and have the scene observed by a third party if necessary.

CSB spokesman Daniel Horowitz told the Houston Chronicle, "Occasionally sites have been modified without adequate safeguards for all the physical evidence. A preservation order would establish a clear process for how major accidents sites should be protected." CSB Chairman Carolyn W. Merritt comments, "Often the preservation of evidence can be assured through binding agreements among all the relevant parties. In other cases, however, the rule will be necessary to protect the federal government's authority to conduct a thorough root-cause investigation."

Industry critics of the proposal claim that the rulemaking could obstruct efforts to make a site safe after an accident. Critics also note that at times CSB investigators require several days to arrive at an accident site and that strict rules for preserving of an accident site could cause delays and harm facility productivity.

But CSB's Horowitz told OMB Watch, "In virtually all cases our investigators arrive at accident sites within 24 hours, and very often on the same day as the event. And if there's ever a concern about evidence preservation, we would be doubly sure to arrive there as quickly as possible."

The proposal's supporters also counter that the rule allows an owner/operator to take steps to ensure the safety of a site after an accident. According to the proposal, "The CSB recognizes that emergency response and mitigation activities will take precedence over the preservation of evidence." Supporters maintain that common sense should dictate that rules prevent a potentially responsible party from interfering in an investigation any more than absolutely necessary. The CSB asserts that evidence gathering is a vital step in determining the most appropriate recommendations to improve plant safety for the sake of workers and surrounding communities.

The CSB's function is illustrated in the agency's recent "Video Safety Bulletin" that highlights the probable root cause of a Jan. 25 explosion at ASCO Acetylene Plant and offers safety recommendations. Without preservation of evidence, such detailed determinations and recommendations would be more difficult, if not impossible, to make.

The CSB recently extended the comment period for the rule to March 6, following several extension requests made by trade associations including the American Petroleum Institute, the Fertilizer Institute, the Synthetic Organic Chemical Manufacturers, as well as the U.S. Occupational Safety and Health Administration. Public comments on the rule can be directed to: Chemical Safety and Hazard Investigation Board, Office of General Counsel, Attn: Christopher Warner, 2175 K Street, NW, Suite 650, Washington, DC 20037.