16 August 2007 16:13 [Source: ICIS news]
By Joe Kamalick
Senator Frank Lautenberg (Democrat-New Jersey), who heads the Senate subcommittee responsible for chemical security and safety, said he is determined to introduce legislation to strengthen the board’s authority and give it more funding for additional investigators.
Lautenberg’s staff said the senator has yet to draft specific legislative language, but the outlines of his likely legislation have already been articulated by the safety board.
According to Carolyn Merritt, recently retired as CSB chairwoman, the new legislation will probably address areas of concern that have troubled the board’s operations during the five years that she served as boss.
First, said Merritt, new legislation will probably seek to give the Chemical Safety Board the same level of accident site access and control and evidence security as that granted to the National Transportation Safety Board (NTSB).
When authorised by the 1990 Clean Air Act Amendments, the CSB was meant to duplicate for the process industry the kind of expert and thorough investigations done for transportation accidents by the highly respected NTSB.
“While we were modelled on the NTSB,” said Merritt, “some of the rights and authority granted to the NTSB were not included in our authorising legislation, and that has caused some problems over the years with our investigations.”
If, as expected, Congress does grant the chemical safety panel new authority, it will have unfettered access to and control of accident sites, Merritt said. In several instances, CSB investigators have been barred from entering accident sites by municipal police or fire department officials.
In one noteworthy case, said Merritt, CSB investigators were barred at gunpoint by local police from a
With the anticipated new statutory authority, once the CSB notifies on-site authorities that its investigators are en route, local police will be required to seal off the accident site as soon as the fire is out, keeping the area and its potential evidence untouched and secure until the CSB team arrives.
“We understand that local investigators need to do their own, parallel investigations,” Merritt said, “but the CSB needs to be in there first as soon as the site is safe.”
The chemical investigators also have had some problems with other federal agencies, she said. In one case, agents of the Occupational Safety and Health Administration (OSHA) removed key evidence from an accident site and shipped it off to
The new legislation is also expected to address three other areas of concern for the Chemical Safety Board.
First, Merritt said the board needs statutory authority to decide which commercial testing labs will examine evidence. Too often, she said, CSB investigations have been delayed for months because various parties in an accident case - especially litigation attorneys - will engage in protracted negotiations over which labs are impartial or seen as biased against one party or another.
Merritt said that with new authority the board could still consider the suggestions or objections of stakeholders but the CSB would have to be able to make a prompt and final decision.
Second, the CSB needs statutory authority to access the records of both OSHA and the Environmental Protection Agency (EPA).
“We have certainly been hampered in our investigations by EPA and OSHA officials who have declined to provide pertinent information,” Merritt said, “and under our current authority we have no way of challenging that.”
For example, she said the CSB believed that both EPA and OSHA had failed to fully enforce process safety and risk management regulations in the BP Texas City case, “but we were unable to get key records from those agencies on those issues”.
Part of the Chemical Safety Board’s mandate from Congress is to identify regulatory enforcement gaps and make recommendations on how to remedy them, she said, but that goal is impeded if other agencies are not co-operative.
Finally, Merritt said the board needs stronger legislative authority to protect witnesses and witness testimony from disclosure to private parties and even other agencies.
Under existing law, CSB investigation results and witness testimony cannot be used in civil litigation cases - but that does not necessarily prevent personal injury lawyers from seeking such documents under the Freedom of Information Act.
Merritt said the board needs better protection for witness identities and their testimony because the risk of disclosure can inhibit forthright accounts by those with knowledge of an accident.
She said the CSB has not yet had to yield any witness identities or testimony to civil litigants, but the board has been obliged to show testimony to officials conducting criminal investigations.
“The pursuit of criminal investigations by other federal agencies is important, and we don’t want to impede that,” Merritt said, “but sometimes other investigators just want a shortcut to evidence.”
She said the board needs to secure witness testimony because “that encourages witnesses to be forthcoming in their interviews with us when they know these records will be protected”.
Solid protection for the confidentiality of CSB witness testimony “doesn’t mean that criminal investigations would be hampered”, Merritt said, “just that they would have to do their own investigations”.
Merritt said the prospects for congressional approval for these new CSB authorities and funding look good.
“We have had good support on both sides of the aisle on Capitol Hill,” she said, referring to Democrats and Republicans in Congress. “I think there is hope for a relatively easy legislative fix for these issues.”
Congress resumes legislative business on 4 September.
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