The Nickel Report

The fiscal year 2018 budget blueprint released by the Trump administration on March 16, 2017, proposes to zero out funding for the Chemical Safety Board (CSB or the Board). Elimination of CSB funding would reduce federal government expenditures by approximately $12 million annually.

The CSB was created by the Clean Air Act Amendments of 1990. The conference report, which is the only definitive statement of legislative history because it had concurrence of both House and Senate managers of the bill, included the following description of the independent Board:

The conference agreement establishes a Chemical Safety and Hazard Investigation Board, similar to the National Transportation Safety board, to investigate chemical accidents. The Board is authorized to investigate accidental releases which cause substantial property damage.

Section 112(r)(6) of the Clean Air Act, as adopted in 1990, provided the statutory authority for the Board and specified that the Board was to investigate, determine and report to the public on the cause or probable cause of chemical accidents. In an effort to prevent and reduce future chemical release incidents, Congress intended for CSB to focus its effort on root cause investigations, particularly for those chemical incidents with significant consequences, including fatalities, injuries, more than $500,000 in facility damage, or significant ecosystems or community impact. The Board does not issue notices of violation or pursue penalties. Rather, like the NTSB does for aircraft accidents, CSB concludes its investigations by issuing detailed reports, often including recommendations to industry, regulatory agencies and labor groups for safety improvements and/or the adoption of new industry or regulatory standards.

In order to preserve its singular focus, CSB was intended to function independently of the rulemaking and enforcement authorities of federal regulatory agencies, such as the Environmental Protection Agency and the Occupational Safety and Health Administration. The Board operates under the supervision of independent board members and no other agency or executive branch officials are authorized to direct the activities and focus of CSB in its investigation of chemical incidents. CSB has, however, entered into a number of memorandums of understanding with regulatory agencies that govern how investigations proceed in coordination with law enforcement efforts.

The CSB began operating in January 1998. Today, CSB operates with a lean staff consisting of approximately 48 employees located in Washington, DC, and a small western field office in Denver, Colorado. CSB staff includes chemical and mechanical engineers, industrial safety experts and other specialists. The five board members are appointed by the president and confirmed by the Senate.

Examples of recent CSB investigations and reports include:

• Freedom Industries. Investigation into the January 2014 release of 4-Methylcyclohexane methanol into the Elk River from the Freedom Industries facility in West Virginia. The chemical release contaminated drinking water for approximately 300,000 residents. The CSB investigation analyzed a number of safety issues, including the mechanical integrity of storage tanks and risk communication following the chemical release.
• West Fertilizer. Investigation into the April 2013 explosion at the West Fertilizer facility in West, Texas. The incident, caused by the detonation of stored ammonium nitrate used for fertilizer, resulted in the deaths of 12 emergency responders and at least two members of the public. The explosion caused in excess of $230 million in damage and destroyed a nursing home, apartment complex and local schools. The CSB report identified best practices for the use and storage of fertilizer grade ammonium nitrate, emergency planning and land use near hazardous facilities. Lessons learned from the investigation were relevant to the continued operation of more than 1,350 facilities that store ammonium nitrate.
• US Ink. Investigation into a 2012 combustible dust flash fire and explosion that burned seven workers at the US Ink plant in East Rutherford, New Jersey. The final report identified a need for a national general industry combustible dust standard.

In response to the Trump administration’s budget blueprint, CSB Chairperson Vanessa Allen Sutherland issued a statement expressing concern and disappointment. The statement emphasized the unique role of CSB in responding to catastrophic incidents and other chemical releases:

The CSB is an independent agency whose sole mission is to investigate accidents in the chemical industry and to make recommendations to prevent future accidents and improve safety. For over 20 years, the CSB has conducted hundreds of investigations of high consequence chemical incidents, such as the Deepwater Horizon and West Fertilizer disasters. Our investigations and recommendations have had an enormous effect on improving public safety. … The CSB has been able to accomplish all of this with a small and limited budget. The American public is safer today as a result of the work of the dedicated and professional staff of the CSB. …

Given the specialized and highly technical nature of the CSB’s mission, and the nationwide geographic distribution of catastrophic incidents, it is unlikely that state governments will have the ability or resources to step into a gap caused by defunding the Board. As a result, if the budget blueprint is adopted as proposed, we can expect that governmental responses to chemical incidents will shift away from root cause analysis and industrywide safety improvements to a more singular focus on facility-specific enforcement and cleanup.

Major chemical and refining companies have their own independent compliance and auditing programs intended to investigate chemical releases or near-misses, i.e., threatened releases or near catastrophic incidents. Even with the elimination of CSB activities, those companies would be expected to continue such programs. Other organizations, such as the Center for Chemical Process Safety and industry trade associations, also provide venues for information sharing related to actual or threatened releases of chemicals and other industrial accidents. That being said, since yesterday’s announcement that the CSB was a potential target for defunding, several industry representatives have made statements indicating that shuttering the CSB, and eliminating its preventative mission in response to incidents, is not a good idea. And, of course, while the administration can defund the Board, elimination would require a statutory amendment of the Clean Air Act.