The Trump Administration issued its proposed fiscal year 2018 budget which, if adopted by Congress, would direct all federal spending beginning on Oct. 1, 2017. The budget, as proposed, would “zero” out funding for the Chemical Safety Board (CSB). As such, the proposal would effectively eliminate the CSB, consistent with the Administration’s priorities as reflected in its supplemental budget proposal issued earlier in 2017. That proposal, however, was not adopted by Congress, and the CSB received its budget authorization to continue operating at least through October of this year. The elimination of the CSB, however, could result in increased risk of accidental fires, explosions, and similar incidents across industry sectors, including within the food processing sector. It could be years before the full consequences of a decision to close the CSB—as opposed to reforming the agency—will be apparent.
When Congress created the CSB, by the Clean Air Act Amendments of 1990, it tasked the Board with investigating the cause or probable cause of chemical and industrial accidents. At the time it was created, the CSB was modeled on the already successful National Transportation Safety Board. Congress hoped that the Board’s investigations would lead to improvements in chemical process safety across industries, including the food processing industry (and related activities) via its root cause analysis of accidents and resulting recommendations. In addition to issuing incident-specific investigation reports, the CSB also issues safety bulletins that provide guidance to industry to prevent similar incidents across industrial sectors.
Elimination of the CSB would terminate its unique investigatory function into industrial incidents. This is particularly concerning because that function is unlikely to be replaced by other federal agencies or by the states. Most other federal regulatory agencies are not positioned to step into the CSB’s shoes because they are charged with enforcing the law. As a result, any investigation into a chemical incident is going to focus on penalties for regulatory violations as opposed to drawing conclusions to understand the incident and prevent similar incidents in the future. The cost of performing these investigations, including maintaining a core group of experienced technical staff, is unlikely to be picked up by any individual state. Such an investment is unlikely to be seen as cost effective at the state level because no individual state is likely to have enough incidents to justify the expense. Further, individual states may be concerned that highlighting industrial accidents via these types of investigations could deter the construction of future industrial facilities within their jurisdiction.
The majority of the incident investigations pursued by the CSB involve events resulting in deaths, off-site injuries, widespread property damage, substantial environmental contamination, and/or significant natural resource damages. Historically, events investigated by the CSB are often associated with petrochemical or chemical facilities. An example of a recent, high-profile investigation conducted by the CSB is the Freedom Industries chemical release in Charleston, W.V., which interrupted the water supply for hundreds of thousands of local residents.
Although not as common, the CSB also investigates incidents at food processing and related facilities. Most recently, for example, the CSB investigated the release of 32,000 pounds of anhydrous from a warehouse and distribution center in Theodore, Ala., that resulted in about 130 members of the public seeking emergency medical attention. That investigation identified the root cause of the release as “hydraulic shock.” As a result of the investigation, the CSB released a Safety Bulletin providing key lessons to prevent future hydraulic shock incidents at facilities with ammonia refrigeration systems. This guidance may reduce the risk of future ammonia releases within the food processing industry, which frequently use large ammonia refrigeration systems.
Lessons learned from CSB investigations—even when they do not involve incidents specifically arising at food processing facilities—can be highly relevant to food processing companies. As an example, in 2010, the CSB released a Safety Bulletin titled “Seven Key Lessons to Prevent Worker Deaths During Hot Work in and Around Tanks” that targeted a number of industrial sectors, specifically including food production. The Bulletin was based upon over 60 fatalities identified by the CSB over a 20-year period as a result of explosions and fires from hot work activities on tanks. The majority of these incidents did not occur at food production facilities, but the CSB distilled key lessons from the incidents that applied across industrial sectors and provided specific recommendations to decrease the risk for similar work in the future.
Elimination of the CSB would result in the termination of about 50 staff members and reduce federal spending by only $12 million annually. The CSB’s current budget, for perspective, is equivalent to about one-tenth of 1 percent of EPA’s annual budget. Because the CSB was specifically authorized by the Clean Air Act Amendments of 1990, it can only be formally eliminated by legislation. Zeroing out the Board’s budget would not, therefore, remove the statutory provisions authorizing the CSB. Interestingly, although the CSB would be unable to function without staff, zeroing out the budget would not eliminate the Board members which are appointed by the President and confirmed by the Senate. So, while the budget proposal would render the Board unable to function, the current four board members would remain in office until they resign or they each reach the end of their respective five-year terms.
Because the Board was intended to pursue a purely investigative function—as opposed to an enforcement function—it was originally anticipated that investigators would have cooperation from industry, including ready access to witnesses and evidence needed to determine the cause of industrial accidents. More recently, however, some personnel in the food processing industry have voiced concern about the blurring of lines between the CSB’s originally intended function and the enforcement investigations pursued by agencies like the EPA and OSHA. In recent years there has also been concern about the quality of management at the CSB. For example, a 2014 federal survey showed that employee satisfaction at the CSB was the lowest of any federal agency. In fact, the Chair resigned in 2015 due, at least in part, to management issues at the CSB.
Despite these concerns, many industry leaders continue to support the Board’s investigatory function originally intended by Congress and appreciate the safety benefits that can be achieved when the Board pursues its mission. As a result, these leaders do not want to see the Board defunded. Rather, there is support for refocusing the Board on its core mission, instituting reforms to address the historic management and employee dissatisfaction problems and ensuring that the Board does not cross into the enforcement lanes occupied by regulatory agencies like the EPA and OSHA when it conducts its work.
At this time, there has not been a vocal call for the outright elimination of the Board and its mission in Congress. It is far from certain, therefore, that Congress will eliminate the CSB. The small fiscal savings of eliminating the CSB come at a potentially high cost to worker and community safety. However, even if the Board is defunded now, it could be relatively easily restored by a future administration with the simple allocation of new funding. Recognizing that the votes do not appear to be available to amend the Clean Air Act to eliminate the statutory authorization for the CSB, it would be worthwhile to channel the energy generated by the proposal to defund the agency into a productive exploration of how to refocus the CSB in a manner that would allow it to successfully serve its originally intended purpose of improving chemical process safety across multiple industries, especially in food processing.
Boer, who formerly worked in the Environmental Enforcement Section at the Department of Justice, is currently a partner with Hunton & Williams LLP and represents private companies, utilities, and individuals in federal and state environmental litigation and in defense of environmental enforcement actions and citizen suits. Reach him at JTBoer@hunton.com.
AUTHOR’S NOTE: This article presents the views of the author(s) and do not necessarily reflect those of Hunton & Williams or its clients. The information presented is for general information and education purposes. No legal advice is intended to be conveyed; readers should consult with legal counsel with respect to any legal advice they require related to the subject matter of the article.