CSB Requests Comments on New Evidence Preservation Rule

January 20, 2006

The notice appeared in the Federal Register on Jan. 4, 2006. Under the proposed rule, the CSB investigator-in-charge would be authorized to issue a written "Notice of Accident Investigation Initiation and Order to Preserve Evidence" which would require the owner or operator of an accident site to take precautions to protect chemical and physical evidence as well as documents, records and electronic data.

The proposed rule provides procedures for preserving evidence in the event of "qualifying emergencies" including operations related to rescue, firefighting and environmental protection. The rule also does not restrict the activities of other federal, state or local authorities or emergency responders. The regulation applies only to accidents to which the CSB deploys or intends to deploy investigators and only in cases where the owner or operator receives a written preservation notice from the CSB.

Public comments should be directed to Chemical Safety and Hazard Investigation Board, Office of General Counsel, Attn: Christopher Warner, 2175 K Street, NW, Suite 650, Washington, DC 20037. Comments must be received on or before Feb. 3, 2006.

"This authority, which derives from the statute creating the CSB, will likely be used in only a handful of cases each year where there is a concern about the integrity of evidence," said CSB Chairman Carolyn W. Merritt. "Often the preservation of evidence can be assured through binding agreements among all the relevant parties. In other cases, however, the rule will be necessary to protect the federal government's authority to conduct a thorough root-cause investigation. Even in those cases, if the company enters into an agreement governing the handling of key evidence, we will typically be in a position to lift the order to preserve."

Source: Chemical Safety and Hazard Investigation Board (CSB).