Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.

The Inspector General (IG) issued a somewhat bizarre report yesterday on “management challenges” at the Chemical Safety Board. The IG is required by the Reports Consolidation Act of 2000 “to report what we consider the most serious management and performance challenges facing the CSB.”

As the report accurately states, “Historically, the CSB has been plagued with leadership issues such as tension among board members, disputes over the Chairperson’s authorities, and complaints of alleged abuses by board members or the Chairperson.”  Many of those problems occurred under the chairmanship of Raphael Moure who was forced to resign in 2015 under Congressional and White House pressure due to the serious problems that developed under this administration. The current chair, Vanessa Sutherland — who recently announced her resignation — had addressed many of the previous issues, although the agency is still fraught with a number of problems.

The problem I have with the report isn’t the role of the IG in identifying serious management and performance challenges, but that the challenges it chose to identify are not based on hard evidence and hardly qualify as the board’s “most serious management and performance challenges.”

God knows the CSB has major challenges: Aside from it’s past history of problematic “leadership issues,” it’s a tiny agency with an $11 million budget tasked with the enormous mission of investigating chemical plant incidents across the country, issuing in-depth reports and recommendations that will influence the chemical industry, associations, unions and federal government agencies to change their practices and standards to prevent future incidents. The agency has made a valiant effort over the years to focus on that mission, despite major “leadership” issues, a minuscule budget,  and more recently, the Trump administration’s (so far) unsuccessful attempts to eliminate the agency that Congress mandated in the Clean Air Act of 1990.

What Challenges Did the IG Identify at the CSB?

The main problem that the IG identified was that “The position of CSB Chairperson does not have the statutory authority to take corrective action against other board members for inappropriate behaviors or to hold them accountable.”

Now this is a bizarre statement in itself. The CSB was constituted by Congress as a five-member Board in order to invite and promote a diversity of opinion, not the dictates and prejudices of the Chairperson. And the Chairperson is supposed to be able to work collaboratively with other board members, not rule over them. Malfeasance or corruption, of course, should not be tolerated, but where there is truly egregious behavior, there is already a mechanism for the President to remove a board member for “inefficiency, neglect of duty or malfeasance in office.”

The IG goes on to identify several allegedly “inappropriate or destabilizing” behaviors that one or more unnamed Board members may have committed

Close observers of the Board think that some Board members are targeting member Rick Engler, who was formerly the founder and Director of the New Jersey Work Environment Council, a collaboration of labor, community, and environmental organizations.

So what are the “rogue” behaviors where, according to the IG, a board member has “acted inconsistently with established practices or inappropriately provided information to entities outside the CSB?”

Let me count the ways:

1. The first crime alleges that a board member has sent “messages” to “external parties, such as a labor union worker and a news reporter, that discussed or made reference to news articles related to the CSB.”

I’m not even sure what that means except that some Board members think that other Board members should just sit in their office and never communicate with outside stakeholders (in this case a “labor union worker”) or with news reporters. Now, in the interest of full disclosure, I worked at the CSB for four years, and it would have been ludicrous to think that Board members would not be allowed to communicate with outside parties without the chair’s permission.

And I don’t even know what this means: “The materials reviewed illustrated the inappropriate actions by the board member, and the materials also contained responses conveying frustration from CSB personnel impacted by those behaviors.”

2. The IG also alleges that “a board member sought to post information to the CSB website… instead of allowing responsible staff to post the information so that it was available to all stakeholders,” which is kind of bizarre considering most mere mortals (and especially people in their 60’s) wouldn’t even know how to post something on a web site.

3. The IG claims that “a board member “made independent comments on a rule proposed by the U.S. Environmental Protection Agency (EPA), which were then publicly shared by the EPA as a part of the rulemaking process,” instead of waiting for the CSB to draft and submit an “Official position.”

Now, I happen to have been indirectly involved in this “inappropriate” behavior. As a result of an Executive Order issued by President Obama in 2013, both EPA and OSHA began to work on updating their chemical plant safety regulations. California was independently working on updating its regulations affecting refinery safety at the same time. In 2016, Engler sent me, OSHA head David Michaels and several individuals he knew at EPA a copy of a Rand Corporation report, Cost–Benefit Analysis of Proposed California Oil and Gas Refinery Regulations, suggesting that they might find it interesting. The report, written for CalOSHA, described certain creative ways to calculate the costs and benefits of a regulation, such as the cost to consumers if gas prices rise because a refinery is shut down after a major explosion or chemical release. Being as rulemaking was underway, EPA staff put the report into the regulatory “docket,” which contains all information and documents related to the rulemaking.

I was never under the illusion that the report that Engler sent was in any way the “official” board position on the revision of OSHA’s Process Safety Management standard. And despite the fact that both Engler and the board make it clear to EPA that the document was not the official CSB submission, the IG (and apparently at least one other board member) were worried about the unlikely event that the document “could have given the impression that the comments represented the board’s position as a whole.

Again, from my experience in Government and at the CSB, forwarding information that other agencies might find helpful is a useful and welcome activity of chemical safety experts, like the members of the Chemical Safety Board.

4. The final crime identified by the IG was the apparent leak of CSB’s fiscal year. Now, leaking drafts of internal agency documents is generally not a good thing, but the report presented no evidence that a board member had actually leaked the document except for gossip that “Some CSB managers believe that the person who leaked the budget request was a board member.”

Really? The IG is essentially accusing “a board member” of leaking confidential information based on the belief of “some CSB managers?” Evidence? Motive? Apparently no need for that.

So, this is the sum total of the “inappropriate or destabilizing” behavior of one or more “rogue” board members. Are these really the most serious management and performance challenges faced by the CSB?

A Solution in Search of a Problem

What is the solution to this “problem”?  According to the IG report,
 

So, the IG is recommending that Congress change the law to allow the CSB Chairperson to “correct inappropriate or destabilizing behaviors by board members?” And, by implication, the Chair also gets to define what “inappropriate” or “destabilizing” behavior is. Such an action by Congress would be an unprecedented and dictatorial granting of authority to the chairperson of any government board, enabling him or her to unilaterally determine who the other board members are allowed to talk to, what they can say, what materials they can send to colleagues, and apparently all of that with no due process or evidence. And such powers would hardly encourage the board’s chair to work collaboratively and cooperatively with other board members.

IG to Trump: Leave the CSB Alone!!!!

The other problem the IG identified is more real: the “negative impact” on the agency due to the President’s recommendation to eliminate the CSB in the FY 2018 and FY 2019 budgets proposals. The IG cited two “negative impacts” from the President’s proposed death sentence.

First, despite the fact that Congress has not agreed with the President’s recommendation, CSB chair Sutherland blames the President’s budget proposals for difficulties the agency is having with staff retention and recruitment.

The second “negative impact” of Trump’s proposed budget, according to the IG, was the recent decision by the CSB staff to unionize: “The President’s repeated plans in his budget requests to abolish the agency were cited by a union representative as a primary reason that CSB employees wanted to unionize.”

So forming a union is now a “negative impact”?  Not according to the National Labor Relations Act.

In any case, the IG recommends that the CSB ignore the President’s budget proposal and “continue to work with Congress toward achieving funding needs wherever possible.”

Other Problems

It’s also unclear to what extent the CSB’s very real hiring and retention problems result from the President’s budget. Following Sutherland’s recent decision to resign, CSB staff began speaking out privately about the internal problems plaguing the organization. They include a large number of issues including:

• Misplaced Hiring Priorities, focusing on hiring administrative staff instead of investigators;
• Problems with investigations including shorter investigations, focusing on “direct causes” of incidents instead of root cause investigations, and ignoring considerations of safety culture and regulatory analysis;
• Eliminating  review of draft reports by experts, the company, union, and other stakeholders which would harm the accuracy, objectivity and applicability of reports.
• Outsourcing report writing to professional report writers so CSB investigators can “investigate,” which threatens to the agency’s ability to communicate the analysis and findings to the public and hurts the staff’s professional development;
• Cutting benefits and reducing flexibility, such as telework, which particularly impacts working parents;
• A number of other problems involving staff promotions and how the budget is spent.

And a Final Snarky Comment

Because the CSB is such a small agency, it doesn’t have its own Inspector General’s office,  unlike the big cabinet departments. Instead, the EPA’s Inspector General’s office has the responsibility to oversee the CSB.

Yes, that’s the same EPA that’s headed by Scott Pruitt, currently the subject of more than a dozen corruption investigations, many of which are being conducted by an undoubtedly overworked EPA Inspector General’s office. In addition to the costs of his secure phone booth, flying first class, renting an inexpensive apartment from a lobbyist, asking staff to do personal favors, giving unauthorized raises and many other scandals, we’ve added Mattressgate and Chick-fil-A-gate in just the last few days.

Now, I know there are always management and performance problems even in the best agencies, and in the most honest and efficient administrations. So I would never argue that the IG should ignore problems if they’re real and if they’re significant.

But really, doesn’t the EPA’s Inspector General have better things to do than recommending Congressional action based on unsubstantiated rumors from unhappy Chemical Safety Board members?  And were these really the “most serious management and performance challenges” that the CSB faces?

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