K&LNG
JANUARY 2006
Alert
Environmental
Proposed Evidence Preservation Rule Potentially Exposes
Businesses and Employees to New and Additional Liability
from Accidental Chemical Releases: Comments Due by
February 3, 2006
On January 4, 2006, the Chemical Safety and Hazard
Investigation Board (“CSB”) proposed a regulation
that imposes a new obligation on owners and
operators of facilities where chemical accidents
occur, where chemical accidents occur to preserve
“relevant evidence” relating to such accidents, and
exposes them to criminal liability for failing to do so.
71 Fed. Reg. 309 (proposed Jan. 4, 2006) (to be
codified at 40 C.F.R. pt. 1604). This proposed
regulation could have far-reaching impact at sites that
experience a chemical accident, including possibly
exposing owners, operators and employees to new
criminal sanctions for failing to correctly guess what
evidence should be preserved, or for failing to
preserve that evidence in the right way, as well as the
complete shutdown of an operating facility. For
these reasons, potentially impacted companies should
comment on the proposed regulations before the
comment period closes on February 3, 2006.1 71
Fed. Reg. 309 (to be codified at 40 C.F.R. pt. 1604).
BACKGROUND
The CSB is an independent federal agency
established under the Clean Air Act Amendments of
1990 (the “Clean Air Act”). The CSB is authorized
to investigate chemical accidents that involve
accidental releases of certain substances defined
under the 1990 Amendments.
http://www.csb.gov/index.cfm. The CSB began
operation in 1998 and its relationship to chemical
accidents is similar to the relationship that the
National Transportation Safety Board has to
transportation accidents. It is not an enforcement
agency, but rather functions to investigate facts
relating to certain kinds of chemical accidents.
PURPOSE AND APPLICABILITY
The proposed regulation appears to impose an
affirmative obligation on owners/operators to
preserve evidence at the site of an accidental release
so that the CSB may conduct a full investigation to
determine the cause of the release. If adopted as
proposed, the regulation would apply to an accidental
release with respect to which (a) the CSB deploys or
intends to deploy investigators and (b) the
owner/operator of the site has received a “Notice of
Accident Investigation Initiation and Order to
Preserve Evidence” (“Notice and Order”) from the
CSB. An accidental release refers to “an
unanticipated emission of a substance regulated
under [the Clean Air Act § 112] or other extremely
hazardous substance into the ambient air from a
stationary source resulting in a fatality, serious injury,
or substantial property damages.” 71 Fed. Reg. 311
(to be codified at 40 C.F.R. § 1604.2).
Although the preamble to the regulation explains the
CSB’s authority to promulgate this regulation, it does
not provide any explanation for what circumstances
or conditions caused the CSB to believe that this new
and additional authority is necessary.
SCOPE OF RULE
This rule gives investigators new and wide-ranging
unilateral power to impose broad and potentially
affirmative obligations on owners/operators to
1 The Federal Register notice states that comments are due on or before February 3, 2005, but that appears to be a typographical error.
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JANUARY 2006
preserve “relevant evidence” by empowering
investigators to issue orders for the preservation of
evidence. Pursuant to the proposed regulation, an
owner/operator would still maintain sole
responsibility for control of the site of the release.
However, additional duties would be imposed on the
owner/operator to take steps to ensure that both the
accident scene itself and any “relevant evidence …
which may assist the CSB in determining the cause
or causes of the accidental release,” including any
objects “in any way relevant to the accident and/or
the CSB investigation” are preserved and protected
against being “tampered with, moved, or in any other
way altered or changed, and the status and integrity
of the evidence is protected from post-accident
human intervention.” 71 Fed. Reg. 311-312 (to be
codified at 40 C.F.R. § 1604.2, § 1604.3(b))
(emphasis added). The term “relevant evidence”
includes “any structures, artifacts, machine(s),
device(s), apparatus(es), process(es), control(s),
equipment, sample(s), substance(s), and/or any other
physical objects or documents that a reasonable
person would believe might help establish the cause
or causes of the accident under investigation.” 71
Fed. Reg. 311 (to be codified at 40 C.F.R. § 1604.2)
(emphasis added).
PROCEDURE
Under the proposal, the CSB Investigator-in-Charge
(“IIC”) may issue a Notice and Order to the
owner/operator of the facility where the accident
occurred based on the IIC’s unilateral determination
that physical evidence at the site is in danger of being
tampered with, altered or removed. The Notice and
Order will inform the owner/operator of its
continuing obligation to maintain the security of the
site, and as noted above, will include notice of the
additional duty to preserve any relevant evidence that
“may assist the CSB in determining the cause or
causes of the accidental release …” and to preserve
all evidence “believed to be involved in the accident,
or in any way relevant to the accident or the CSB
investigation.” 71 Fed. Reg. 311-312 (to be codified
at 40 C.F.R. § 1604.3(b)). There is no requirement in
the regulation that the Notice and Order contain any
particular description of the specific evidence to be
preserved. The Notice and Order may be issued if
the CSB intends to investigate, and remains in effect
until the CSB sends a written notice to the
owner/operator that the Notice and Order has been
rescinded.
2
Once the owner/operator receives the Notice and
Order, it must acknowledge receipt in writing and
post conspicuous copies of the Notice and Order near
or on any and all documents or physical objects
believed to be relevant to determining the cause of
the accident. Additionally, an owner/operator must
refrain from any activity that would affect the
integrity of the site or potential evidence contained
therein. If, at some point, it becomes necessary, due
to a “qualifying emergency” (a term which includes
first responder activities) to disturb the site or any
evidence contained therein, then the owner/operator
must notify the CSB of the emergency. The
owner/operator must provide the CSB with enough
time to (1) comment on the proposed alteration, (2)
document the site and/or evidence or (3) seek judicial
intervention to prohibit the proposed alteration to the
site or evidence. If prior notice is impossible, then
the owner/operator must provide the CSB with
written notice after the disturbance explaining (1)
why advance notice was impossible, (2) all actions
taken, and by whom, to alleviate the emergency, (3)
a timeline of all relevant events, and (4)
photographic, video or any other documentation
indicating the original positioning of the evidence.
The proposed regulation recognizes that there are
numerous other federal, state or local agencies that
may also have jurisdiction to conduct their own
independent investigations of incidents involving a
chemical release, and disclaims any authority on the
part of the CSB to bar any other agency from
performing its investigatory duties. The Preamble to
the proposed regulation indicates that investigative
activities are to be coordinated through the National
Incident Management System, and the CSB has
entered into MOUs with several other agencies, such
as AFT, OSHA, EPA, NIST and NTSB. 71 Fed.
Reg. 310 (to be codified at 40 C.F.R. pt. 1604). The
proposed rule may well leave the owner/operator of a
site experiencing a chemical release exposed to
liability if multiple agencies have disputes regarding
what preservation might mean in a particular
instance.
ENFORCEMENT
The Notice and Order may be enforced through the
issuance of a civil subpoena approved by the CSB
General Counsel. In addition, the proposal notes that
a violation of the Notice and Order (and therefore,
the regulation) may result in enforcement under other
applicable laws. 71 Fed. Reg. 312 (to be codified at
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40 C.F.R. §1604.4). Since these regulations purport
to be issued under the authority of Section 112 of the
Clean Air Act, the penalty provisions of Section 113
may apply. Under Section 113, violations of any
requirement of Section 112 can subject the violator to
significant administrative, civil and criminal
penalties. Thus, any person (including an employee
of an owner/operator) who knowingly fails to
preserve any relevant evidence that might be of
interest to the CSB can face criminal penalties of up
to 5 years in prison, as well as significant fines.
process is in operation, is the owner/operator
required to keep that process running just as it was
when the accident occurred, or may it shut it
down? If either alternative results in evidence not
being preserved because conditions that existed at
the time of the accident have changed, has the
owner/operator breached its obligation to preserve
“relevant” evidence?
■
ISSUES
Few would dispute that the preservation of evidence
that might help explain the cause of a chemical
accident is a reasonable measure. Current laws, such
as those addressing obstruction of justice, already
impose obligations on persons not to impede an
investigation by destroying evidence. These
proposed regulations, however, raise new issues that
the regulated community must consider. For
example:
■
■
■
■
3
Does the Clean Air Act, which authorizes the
CSB to "establish by regulation requirements
binding on person for reporting accidental
releases", include the power to establish
regulations that are binding, but that don't relate to
"reporting of releases"?
The standard of care imposed by a Notice and
Order includes the obligation to take affirmative
steps to preserve relevant evidence “believed to be
involved in the accident, or in any way relevant to
the accident or the CSB investigation.” Does this
impose an objective standard that can be based on
20/20 hindsight, or is it a standard based on what
is known at the time the duty is imposed? Is this
standard based on what a reasonable person might
think is relevant to the CSB investigation, or what
the CSB thinks might be relevant to its
investigation?
If the Notice and Order does not specify exactly
what must be preserved, is it sufficiently specific
to provide adequate notice of what conduct could
constitute a violation of this regulation?
What does “maintaining the status quo” mean? If
an accident occurs while a particular chemical
■
■
■
Alternatively, what are the preservation
obligations of the owner/operator if the operation
involves chemical processes that constantly
change, or operate sequentially, and/or in an
integrated fashion in which conditions constantly
change?
If several company officials discuss how best to
comply with the obligation to preserve evidence,
but the CSB in 20/20 hindsight believes they
should have acted differently, have these officials
conspired to violate the evidence preservation
obligation? Is this potential exposure limited if
the officials consult counsel before making any
decision?
If a particular employee is obligated under this
regulation to take affirmative steps to preserve
evidence which might later be used to prosecute
him or her for knowing violations of the Clean Air
Act, does the imposition of these new obligations
present Fifth Amendment self-incrimination
issues?
If the CSB seeks a subpoena to enforce a Notice
and Order, may the owner/operator seek to quash
the subpoena?
CONCLUSION
The proposed regulation in sweeping terms, and
using broad definitions, expands what is expected of
owners/operators by imposing upon them an
affirmative burden to determine what evidence might
be relevant to an investigation that is yet to be
conducted, and then to preserve that evidence, as well
as the site itself, including documents that may be
located elsewhere. If adopted as proposed, the
regulation could expose site owners/operators and
their employees to potential civil and/or criminal
sanctions based on reasonable disagreements as to
what is needed for the conduct of an investigation.
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JANUARY 2006
The regulated community would be well advised to
submit comments addressing these or other issues
before the comment period expires. While the Clean
Air Act may permit these regulations to be reviewed
to the extent they may be arbitrary, capricious or
inconsistent with law, that review may only be
available within sixty days of when the regulation is
final, and may not be available in a proceeding that
alleges a violation of this rule. In addition, grounds
for challenging these regulations may have to be
raised with the agency in the comment period, and if
not presented to the agency first, may be precluded
from being considered by a court in which a
challenge to the regulations is presented.
William Hyatt
whyatt@klng.com
973.848.4045
Barry Hartman
bhartman@klng.com
202.778.9338
Mary Theresa Kenny
mkenny@klng.com
973.848.4082
K&LNG maintains an Incident Response Team, whose lawyers are experienced in dealing with crises
resulting from oil or chemical spills, explosions, mine disasters and other catastrophic incidents. The Incident
Response Team brings to bear the relevant and necessary experience such as environmental, criminal, labor,
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to all such crises.
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202.778.9338 bhartman@klng.com
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