7/6/12 Working with the Chemical Safety Board After a Major Accident
Joseph Schreiber, an associate in the firm’s Houston office, authored this article that provides an overview of the Chemical Safety Board process as well as some suggestions for working with the board and its agents. The article appeared in the July 2012 edition of Chemical Engineering.
Working with the Chemical Safety Board After a Major Accident
After a serious accident at a chemical plant, refinery or other freestanding industrial facility, the Chemical Safety Board (CSB) may immediately initiate and investigation, often getting “in the air” while the emergency is still unfolding. The CSB team will consist of skilled accident investigators and they often add independent experts noted for their specialized knowledge of whatever systems or processes are to be investigated. They also arrive with legal authority; sometimes in the embodiment of accompanying federal marshals. All in all the process is unlike anything you’ve ever experienced if your experience is limited to OSHA. This article aims to provide a sense of that process as well as some suggestions for dealing with it.
CSB agents come not with the power to levy fines but with a potentially much greater power: the power to shape the narrative of the accident, to frame the questions that define the cause of the accident and to establish fault; all of which is then neatly packaged in a report oftentimes including a dramatic reconstruction of the event which may be admissible in the tort suit which is sure to follow any accident. Since the cost of a tort suit, in legal fees and settlement costs, may far exceed any agency fines a CSB investigation is a serious affair which may create significant risks if handled improperly.
As chemical engineers are aware, the CSB is an independent federal agency charged with investigating industrial chemical accidents. The CSB staff includes chemical and mechanical engineers, industrial safety experts, and other specialists with experience in private and public sectors. It may hire someone with expertise in your particular product or process-perhaps even someone who has published articles about it in the scientific literature.
When thinking about the CSB the following analogy, though imperfect, may help: The CSB is to OSHA as the National Transportation Safety Board (NTSB) is to the Federal Aviation Administration (FAA). Both the CSB and NTSB are investigatory and advising bodies. They have no inherent power to fine. But, their recommendations are taken very seriously by both the government and by the legal system.
The CSB conducts a Root Cause Analysis. Because the goal of the CSB is to prevent future accidents and because, philosophically, it believes most accidents are the result of systemic failures, the “root cause” will almost never be found to have been operator error or mechanical failure. CSB has stated on video that “catastrophic incidents...are never caused by a single operator flipping the wrong switch or one piece of equipment that malfunctions.” It has stated privately during an investigation:
“We’re never going to tell you that the answer is to fire an incompetent employee. Either you hired someone incapable of doing a critical job or you hired someone competent and then failed to adequately train him. Either way, it was a failure of process safety management.”
The CSB will also take the opportunity to investigate emergency response. A detailed investigation of emergency drills, accounting for personnel and host-accident investigation measures conducted by the company is typical.
At the core of all CSB analysis is process safety management; how the company manages hazards mechanically; how employees are trained; how the company audits its operations to identify potential hazards; and, how process changes are communicated and effectively trains employees regarding new processes. Perhaps most importantly, the CSB wants to see whether the company keeps abreast of industry best practices including those recommended by the CSB itself.
Consequently, CSB will invariably find safety management system flaws, including inadequate training, as the root cause of any accident. The finding of system flaws, though unavoidable, is not the company’s major worry. The major worry is the type of report the CSB will prepare and how the company will be portrayed in that report and in the public meetings CSB conducts.
CSB will conduct a public interim progress report meeting. At that report meeting, which will be held in the town where the plant is located, CSB will present its initial findings and take questions from the public. The press may be present. When the final report is completed, CSB will hold another meeting, open to the public, and the board will vote on whether to accept the report.
CSB generally prepares three levels of reports. The first is simply a letter report with few details and a root cause determination. The second level is more in-depth, identifies the root cause and improvements which should be made, and is likely very similar to a report the company would do on its own. The third level of report contains a narrated video with a soundtrack, including both footage of the burning plant and virtual reality depictions of the accident process, the explosion and a mock-up of the carnage which occurred. This last level will include internal company documents showing safety deficiencies and unheeded warnings. Causation will be established. This type of video will be very persuasive evidence in the tort trials against the company. The company’s reaction to CSB’s investigation in large part determines the type of report written.
A major consideration is what to do when the CSB arrives at a plant. CSB agents come unannounced. The first notice a plant manager will get of CSB’s investigation will be a group of people who show up at the gate and pull on jackets with the CSB logo on the back, present badges, and may be accompanied by an armed Federal Marshal. The company should immediately do two things: (1) make a senior safety engineer available to CSB for the duration of the investigation; and (2) call the company’s tort attorneys.
CSB and its outside experts will be professional, learned, and tenacious. They cannot be stalled by being assigned to talk to a low level manager or hourly employee. They will want documents, safety videos, procedure manuals, proof that employees have read and signed the procedure manuals, and access to employees to conduct interviews. CSB has subpoena power and will use it.
The company’s tort attorneys, both internal and external, should be called in immediately. CSB respects the attorney-client privilege. It also respects the internal investigation privilege. Both these privileges protect work done by attorneys to figure out what happened in the accident and also to prepare company witnesses for interviews with CSB. A company cannot hide any facts with lawyers. That isn’t the point. The point is that work done by the company attorneys to find the root cause will be protected from Freedom Of Information Act requests from plaintiff attorneys and activist organizations.
Work done by the company to gather documents for CSB review will be appreciated. The CSB will also appreciate prepared witnesses who have given thought to what happened and why.
The company must develop the narrative of what happened and why. The narrative needs to be consistent among employees at different levels of the plant: from the laborers, maintenance workers and operators, engineers and managers. Frequently in factual investigations when people tell the truth, while the details of recollections are somewhat different due to different views of the event, a consistent narrative of what happened and why will emerge. The company’s lawyers must work very quickly to gather facts, interview witnesses and workers, and develop the narrative. Finding out the narrative, making sure it is consistent and identifying anyone who may be lying for whatever reason, and making sure they do not lie to the CSB – out of a misguided sense of self preservation or out of malice to the company – is of paramount importance.
CSB will likely work with the company at finding the root cause of the accident. If CSB feels it is being lied to or stonewalled, its agents and experts will find the truth anyway and the resulting language used to describe the root cause and company failures will be much more severe.
The company’s narrative must focus on process safety management. If there was a breakdown in process safety management, even if it was employee error or equipment failure, the process should be examined. If an employee failed, the CSB will not find and report that the employee was at fault. The company should discuss improving employee training. If it was a product which failed, the company should discuss maintenance and more frequent safety reviews and audits.
There is an inclination by companies to refuse to admit any failures or deficiencies. However, as stated earlier, CSB will never find that an individual employee is to blame nor will it find a single piece of equipment failed. If it is presented with a narrative from the company, or worse yet, a publicly released report by the company blaming a single operator error or single equipment failure, CSB will likely respond by finding and reporting major safety system flaws. CSB’s report will then be made public and become both an exhibit in the coming trial and provide a roadmap for the plaintiffs’ lawyers. Such a situation, where the company blames an operator’s error, has drawn strong rebukes and narrated, soundtrack-accompanied video reports from CSB identifying the process failures which led to the employee’s final action which may have triggered the accident. Juries and the public are likely to excoriate a company that blames a single employee when the CSB points out systemic company failures. Blaming a single employee’s error, especially in a company report, will end badly for the company.
In noting areas of process safety management which can be improved, and admitting that things did not go perfectly – which would not be a stretch as a major accident has occurred – it can be hoped that CSB will accept the recommendation the company makes for improving the process safety management. In this regard, it is much like a college sports program self-reporting to the NCAA and self-imposing penalties in hopes of avoiding a finding of lack of institutional control.
When CSB finishes its full report, it will usually show the company the report and allow comment. This is not the time for the company to expect to make substantive changes. CSB will change patent errors; things like employee names being misspelled or the wrong person being quoted. If the company waits until this stage in the investigation to present its narrative to CSB, it will be far too late to influence the outcome of the investigation. Instead, as said earlier, the company should work immediately to gather and share information and documents with CSB, interview and prepare employees for interviews by CSB (which are frequently performed tag-team style) and develop a narrative of the cause of the cause of the accident focusing on safety process systems, and self-suggesting improvements.
It may seem too obvious to say, but a company’s actions before an accident are just as important as its response to the accident. Accidents can occur even in the best run companies. An ongoing focus on safety process systems, with regular audits of the systems and processes, should become a regular job of the plant safety management. In particular, a few areas should be monitored regularly. First, the company needs to review and update disaster accountability. This is literally accounting for workers after a major accident. The process for accounting for each and every employee needs to be monitored. Systems in which employees have to leave through a designated gate should be reformed because they are unrealistic. Likewise, antiquated systems where employees sign in manually after an accident are likely to be frowned upon. An automatic badge reader system should be implemented. After an accident, CSB will likely spend a lot of time reviewing the employee accountability system if it is not automated.
Second, companies should review their safety training materials. CSB regularly produces safety training videos. CSB is rightfully proud of its videos and encourages companies to use them. Companies should do so. They should also document both employee participation in the training sessions and understanding of the training.
Third, companies should review and implement CSB’s proposed safety regulations. CSB recommends safety regulations to EPA, OSHA and Congress as part of its duties. These are published. Companies should not wait until after the recommendations become law to implement them. If a recommendation has been published by CSB and not followed by a company, but the recommendation could have helped avoid the accident, the failure to follow the safety procedure will almost certainly be found by CSB to be a root cause of the accident. Such a root cause finding may even be used to support a jury finding of conscious indifference and malice on the part of the company. The recommendations give both notice of the potential harm and a solution.
Put simply, common sense prevails. CSB is a powerful agency inside the federal government. Its power flows from its expertise, tenacity, and investigative abilities. It will investigate after a major accident. Its conclusions will carry weight in courts of law and in the court of public opinion. A company which quickly investigates the cause of the accident, focusing on processes and not blaming single people or single pieces of equipment, prepares its employees to deal with CSB, and works with CSB, will be better able to focus the narrative and avoid harsh results in the inevitable tort trial.
To read the article on the Chemical Engineering website, click here. (Subscription required).