Even as the Chemical Safety Board (CSB) works to continue operating despite a one-member board and a lack of administrative resources, industry attorneys say it still has the capacity to boost inspections of incidents involving using potentially hazardous chemicals from Trump-era levels, should officials choose to take that path.
During a March 16 webinar hosted by the industry-focused law firm Conn Maciel Carey, attorneys including a former CSB investigator said the board increased its “deployments” to chemical release sites in 2020, even as other agencies cut their enforcement actions due to the pandemic, and could ramp up its work on those and other cases even more as COVID-19 becomes less of a threat.
“What [CSB] did in the field was quite a bit different, there were a lot more virtual discussions with employers, gathering documents remotely and planning to meet in the field once vaccination has gotten us past this crisis,” attorney Eric Conn, a founding partner at the firm, said.
He noted that CSB deployed staff to seven incidents in 2020 -- a sharp rise after making only four deployments in each of 2018 and 2019. That is in sharp contrast to other agencies -- especially OSHA, where inspection figures dropped from a relatively steady average of of about 32,000 per year over the prior five years, to 21,000 in 2020.
CSB “actually increased the number of deployments that they responded to during the year, [to] almost as many as they did during Trump's entire term,” he said.
Environmental, worker-safety and other groups have long argued that CSB’s investigations of chemical releases, and its accompanying recommendations for facilities to tighten their controls on use of potentially hazardous chemicals, was sidelined under the Trump administration.
For instance, the whistleblower group Public Employees for Environmental Responsibility attacked the board’s Dec. 17 release of its “Performance and Accountability Report” for fiscal year 2020 that showed just one completed investigation in that span.
“Fiscal year 2020 appears to be the first in the agency’s 23-year history when no new safety recommendations were issued, compared to a prior average of about 38 per year since the agency was established,” PEER said in a statement on the report.
And during the March 16 webcast, Beeta Lashkari, a former CSB investigator now with Conn Maciel Carey, noted that the board remains functional despite several Trump-era proposals to eliminate it entirely, and in spite of significant personnel cuts.
The board’s administrative staff dropped from 38 in 2017 to 29 in 2018, now sitting at 33. In addition, the Senate-confirmed board has been whittled down to one member, Chairwoman Katherine Lemos,
The EPA Office of Inspector General, which also oversees the CSB, warned in its 2020 annual report that the board appears to lack regulatory authority to act with a “quorum of one,” although Lemos and her staff dispute that.
But Conn argued that CSB’s lean structure give it more flexibility than larger agencies -- which he said could be an asset, if used appropriately.
Moreover, he continued, the board could opt at any point to begin investigations into past chemical releases that it lacked the resources to respond to as they happened, because there is no statute of limitations that would force it to act by a particular deadline.
“[T]hey have that luxury at the CSB that OSHA doesn't have -- OSHA has that strict 6-month statute of limitations, and CSB technically has no statute of limitations,” he said.
Speakers on the webinar also made several suggestions for how the troubled agency could streamline its operations under the Biden administration, including by narrowing or revoking a new incident reporting rule or by drawing a regulatory line between incidents that cause injury or death and those that lead to only “substantial property damage” -- defined by rule as $1 million or more.
“CSB acknowledged that it has historically focused on fatalities and injuries over property damage,” said partner Micah Smith. “Virtually all CSB investigations have involved a fatality or serious injury.”
Smith said that distinction presents an unnecessary burden for companies faced with an accident that caused only property damage, given that estimating whether or not the damage meets the $1 million threshold can take “days, weeks or months.”
Smith added, “It’s unclear whether CSB has any guidance in the works to make this easier for the regulated community to deal with, or whether or not they could be persuaded to drop the property damage element.”
Smith also raised questions about the CSB’s newly effective accidental release reporting rule, which was enacted on March 23, 2020, but contained a 1-year grace period for facilities before enforcement began.
“During this period, the CSB will contact owners and operators the agency believes have failed to file a required report,” the law firm Thompson Coburn wrote in a 2020 blog post about the rule. “If the owner/operator files a report immediately after notification, the CSB will not refer the failure to report to EPA; however, this grace period does not apply to knowing failures to report.”
That post noted that the CSB requirements are “separate from and in addition to” reporting mandates under several environmental and worker-safety laws -- which Smith said in his presentation makes the CSB’s rule “unnecessary” and “duplicative.”
“CSB’s reporting rule adds a burden on employers who must determine whether incidents are reportable under all these different reporting requirements,” Smith said.
He also notes that prior to issuing its reporting rule, the CSB relied on National Response Center reports and data from the Internet “related to major chemical incidents, and had never expressed insufficiency regarding these sources.”
Smith said he believes the CSB has been inundated with information, and “even under previous data gathering, CSB investigated only 3 percent of the releases it identified.” From 2009 to 2019, he said, the CSB learned of about 2,000 incidents, but deployed investigators to only about 50 of those.
“Reviewing a large number of additional release reports without finding additional incidents to investigate might waste the already learn resources of this short-staffed and low-budget agency,” Smith said, “and might redirect resources away from investigating more serious incidents.” -- Diana DiGangi (firstname.lastname@example.org)
Editor's Note: This article has been updated to clarify the scope of CSB's inspection authority.