CSB and Employee Participation

Yesterday the Chemical Safety Board published on their web site the Board’s new policy about employee participation in the investigations that it undertakes. They note that the legislation that established the CSB provides employees and their representatives the same rights to participation in the investigation as those enjoyed when OSHA conducts similar investigations {42 USC § 7412(r)(6)(L)}.

Anyone that has conducted or participated in an incident investigation knows how important it is that the investigators have full access to all of the information concerning the incident. Anything less will almost ensure that the investigation will not discover the true root cause of the incident and will thus not be able to prevent re-occurrences. Since the whole point of a CSB accident investigation is to establish the root cause and propose preventive safety measures it is obviously imperative that they have access to all of the facts related to the incident. That means that they must have full and unfettered access to everyone involved.

The Chemical Safety Board is not a regulatory agency. They do not have the authority to issue citations, impose fines or require companies (or agencies) to make changes in policies or procedures. I would suppose that means that there is no requirement for them to issue regulations about the conduct of their investigations; that being the reason that this policy is being announced on their web site and not published in the Federal Register. That may be legally correct (I’m not sure that is the case, but I’m not really a legal scholar or a lawyer; anyone that is may feel free to chime in on this point), but I think that the Board is setting itself up for some interesting legal fights by doing things this way.

The CSB has already had problems with getting adequate cooperation in the conduct of two recent high-profile accident investigations; the MIC explosion at Bayer CropScience and the BP blowout in the Gulf. In the first incident Bayer tried unsuccessfully to deny CSB access to certain information by invoking protections under the Maritime Transportation Security Act (MTSA). In the second instance various parties tried to deny CSB participation in the investigation citing various jurisdictional issues.

Anything that impedes the Chemical Safety Board from conducting a complete and thorough investigation of chemical related accidents puts the entire chemical community at risk. To help avoid delays in future investigations while the legal status of employee participation is wrangled through the courts I would urge the Board to submit this policy to a notice and public comment process, preferably through the Federal Register – www.Regulations.gov process, or even via the slightly less formal process the Board used in formulating their request for a National Academy of Sciences review of the MIC manufacturing process.

Full and complete participation by facility employees and contractors in any CSB accident investigation process is a prerequisite for obtaining all of the information necessary for the CSB to determine to root cause of the incident under investigation and to formulate their recommendations for measures other facilities can take to prevent future occurrences of similar accidents. This policy will go a long way to encouraging that participation, but the CSB needs to ensure that the community has a chance to buy into this policy. That can only be achieved by a public notice and comment process whether or not it is legally required.