Sustained Outrage

Will the Chemical Safety Board survive?


Obama administration Chemical Safety Board nominee Kristen M. Kulinowski testifies during a Senate confirmation hearing last week.

It’s growing increasingly difficult to see a light at the end of the tunnel that the U.S. Chemical Safety Board finds itself in these days. Here’s one of the latest takes on things, from the San Francisco Chronicle:

The tiny federal agency that has urged big reforms in how California regulates oil refineries is in disarray.

To some, the strife at the U.S. Chemical Safety Board — the 40-person authority charged with investigating industrial accidents and recommending ways to improve safety — bears strong resemblance to the headlines from developing nations:

Its leader, seen by critics as an autocrat, is forced out before his term is up. His successor takes charge in what detractors call a backroom maneuver and moves quickly to consolidate power, ordering loyalists of the ousted regime removed from their posts with the help of armed guards.

“What is going on at the Chemical Safety Board is a little slice of the eastern Ukraine here in Washington, D.C.,” said Jeff Ruch, executive director of the Public Employees for Environmental Responsibility, a group that advocates for government workers.

Meanwhile, he said, the board’s mission of pushing regulatory reform is languishing. “The industrial infrastructure is getting older, and we’re not doing anything about it.”

Engler_RichardLRNow, when I interviewed the CSB’s acting chairman, Rick Engler, a few weeks ago, he had some solid things to say. But in some ways, the jury is probably still out. For example:

—  Chairman Engler said that he disagrees with efforts by chemical industry lobbyists to narrow the scope of the board’s investigatory authority, but he also emphasized his belief that the board itself needs to narrow its priorities.  “We are a very small agency and we can be most effective by focusing on a small number of issues,” Engler told me.

— While he says that we are currently at a critical time of the Obama administration when it comes to any potential chemical safety reforms, Chairman Engler also does what so many people in the labor community appear willing to do: Let the heads of agencies like the Occupational Safety and Health Administration off the hook for not more aggressively using their rule-making authority these last nine years.  Engler noted his own view is “there isn’t any point” in criticizing OSHA chief David Michaels for his agency’s failure to move beyond the talking stage on the CSB’s “Most Wanted” safety reform: A new federal standard on deadly combustible dust. “The bottleneck is above his level and it’s unfortunate that we have a system that puts so many hurdles in front of urgently needed standards,”  Engler said.

The most impressive thing I heard from Chairman Engler, though, came when I asked him if he agreed with the conclusions of now-ousted Board Chairman Rafael Moure-Eraso in a New York Times op-ed piece that the United States is facing “an industrial chemical safety crisis.” Chairman Engler said:

I think there is a continuing crisis and under my watch I don’t want to wake up in the morning and hear about the next disaster where we have multiple facilities. I really genuinely believe that enough is enough.

Still, troubling revelations continue. The latest Public Employees for Environmental Responsibility disclosures, for example:

The new leader of the U.S. Chemical Safety and Hazard Investigation Board (CSB) is busy spending money on things other than chemical safety, according to records released today by Public Employees for Environmental Responsibility (PEER). In the past weeks, CSB has let nearly $100,000 in sole-source contracts for outside lawyers and consultants without public notice or discussion and kept them below a dollar threshold that would trigger an array of federal procurement requirements.

Last month, Richard Engler declared himself the “Interim Executive and Administrative Authority” for the CSB, a status disputed by the only other remaining Board member, Manuel (Manny) Ehrlich. He then proceeded to put the general counsel and managing director on paid administrative leave and began reassigning staff. Without informing Ehrlich, he also began unilaterally executing no-bid contracts for —

–An organizational consultant called RGS of Arlington, VA for $49,998 ; and

— “Legal Services” from the Washington, DC firm of Shaw, Bransford, Veilleux and Roth. Records indicate two payments totaling $45,000 have been authorized thus far at a billing rate between $175 and $300 per hour.

Then there was the very disappointing confirmation hearing the Senate Environment and Public Works Committee held on on Obama CSB nominee Kristen M. Kulinowski.

All that the Republican majority on the committee seemed to want to talk about was whether the investigation would continue of now-suspended board staffers Daniel Horowitz and Richard Loeb … well, and that if confirmed Kulinowski would work on CSB investigations on a “case-by-case” basis, rather than on broad issues facing the industry, like inherently safer technologies.

West Virginia Republican Sen. Shelley Moore Capito did start down the road of asking a good question, reminding the nominee first of the CSB’s repeated visits to the Kanawha Valley for investigations at Bayer CropScience, DuPont Co., and Freedom Industries.  But, Sen. Capito went off in the direction about the importance of the chemical industry to the valley, and whether the board will continue to consult with local communities about its recommendations. It’s not that consulting with communities is bad — it’s obviously good. But Sen. Capito passed up the chance to talk about what sorts of common themes the CSB may have found in these investigations, and what sorts of regulatory reforms might help stop future such incidents.

Even more maddening was the fact that the committee’s ranking Democrat, Sen. Barbara Boxer of California, passed up the chance to ask any questions — ignoring an opportunity to talk about real chemical safety issues that surely she knows and cares about.

We saw again recently how important the Chemical Safety Board’s work really is, when OSHA labeled DuPont a “severe violator,” raising questions about the chemical giant’s safety culture that CSB officials were trying to talk about four years ago.

The CSB has another of its D.C.-centric “public business meetings” scheduled for Wednesday of this week.  Interestingly, the press release announcing the meeting noticed:

— The meeting would include discussion of the status of current investigations, including the one at DuPont Co.’s plant in LaPorte, Texas.

— A quote from Chairman Engler saying,  “In keeping with the CSB’s new emphasis on public transparency and engagement, this meeting provides another opportunity for a public discussion on the board’s ongoing safety initiatives.”

Last week, I asked the CSB about reports that agency investigators have drawn up some sort of urgent recommendation for DuPont’s LaPorte, Texas, plant. I wanted to know if there was such a proposal, what it said, and what the board was going to do with it. A board spokeswoman reported back that “the document you are referring to is very much in draft stages and not yet a Board product.” She said the agency wouldn’t release it, even in response to a Freedom of Information Act request.

If board investigators have an urgent recommendation for DuPont, shouldn’t that be discussed — and voted on — right away during a public meeting, under this “new emphasis on public transparency and engagement” that Chairman Engler touts?

Or is the CSB going to continue to be mired in internal bickering and constant controversies that have little to do with making sure that none of us have to wake up in the morning to news of another disaster with more dead workers?