The US Chemical Safety Board’s Turmoil Is Playing With Public Safety

The US Chemical Safety Board, a small agency tasked with investigating the country’s most dangerous oil and chemical disasters, has been immersed in an internal war for the past year, with two board members up against the board chair Rafael Moure-Eraso and the agency’s staff. Inside this fight is a tale of ambition, manipulation and personal games that put public safety and the prevention of chemical accidents at risk. The fight has pitted board members against staff, and endangered the effort to decide what safety system would work best to help prevent catastrophic accidents from happening in the future.

This internal dispute has now led to former Republican-appointed board members triggering hearings this Thursday on the Chemical Safety Board before the US House of Representatives Oversight and Government Reform Committee, chaired by Rep. Darrell Issa (R-California). One of the two Democratic appointee board members in question will also testify and the other will submit written testimony. However, a strongly worded internal staff document with searing allegations against these board members has been obtained by Truthout that sheds new light on the disastrous inner workings of this vital agency.

The US Chemical Safety Board (CSB) is an obscure agency with an essential job. It investigates the causes of our largest oil and chemical accidents, such as the BP Deepwater offshore oil explosion, West Texas chemical factory explosion, Richmond California Chevron refinery fire, Tesoro refinery fire in Washington State and the Freedom West Virginia drinking water disaster, and makes reports and recommendations to help prevent future disasters. Think of them as being like the National Transportation Safety Board for chemical accidents.

Earlier this year, after a contentious and disastrous January public meeting to approve a report on the Chevron refinery fire in Richmond, California, all four investigative supervisors and team leads sent a strongly worded memorandum to two board members, Beth Rosenberg and Mark Griffon, entitled “Restoring Trust.” This memorandum bared forward alleged disconcerting behavior from June 2013 to try to get these two board members to stop the hostility and work with the chairman Rafael Moure-Eraso and the staff. Truthout obtained a copy of this memorandum and other documentation. This now-released document, that can be seen in full here, paints a very different picture of what is causing dangerous delays in the agency’s reports than the picture portrayed at public meetings and previous media stories.

The February 10, 2014 memorandum to board members Beth Rosenberg and Mark Griffon by four staff members, Don Holmstrom, Johnnie Banks, Cheryl Mackenzie and Dan Tillema, included uncharacteristically strong language for any federal government agency. For example, the first sentence pulled no punches about the intent of the memorandum:

We are writing to you as the entire CSB Investigation Team Leads/Supervisors group to express our serious concerns regarding Board members’ behavior that has done significant damage to the morale of the investigative personnel and the mission of the CSB.

The memorandum goes on to list major allegations of manipulation and self-dealing by these board members in order to discredit the Board chair and staff and gain power. Examples from the memorandum, which can be seen here, include:

• In June 2013, Board Member Rosenberg traveled to the Denver office and held unannounced private meetings with individual investigators. In these meetings she stated that she was working to remove Chairperson Rafael Moure-Eraso and [Managing Director] Daniel Horowitz from their positions. She stated she was interested in assuming the role of Chair. She had similar follow-up conversations with staff on several occasions. These communications had a severely disruptive impact on the investigative staff.
• During the resolution of Board comments in September 2013 for the NDK [NDK Crystal manufacturing company] investigation, Board Member Griffon spoke to a member of the investigative team and stated he was delaying the approval of the report so that Daniel Horowitz would not receive credit for the report and attainment of his annual goals.
• In October 2013 Board Member Griffon spoke to the Director of the Western Regional Office (WRO) in Denver. At that meeting the Board Member Griffon made a request to retard progress on the reports being developed out of the WRO. He stated the completion of significant reports made Chairman Moure-Eraso look good which he viewed as a negative outcome. The WRO Director replied that the staff’s job is to complete high quality reports in a timely manner.
• In recent conversations with the staff, Board Member Rosenberg stated that Rafael Moure-Eraso may be gone by September 2014. She also said it may be the case that no reports such as Chevron, Deepwater and Tesoro are approved until then.

The memorandum also stated that “[a]s described herein board member actions are working to delay reports – it is all the more disheartening to hear those same Board members working actively to reach out to stakeholders and the public to complain that reports are being delayed through poor planning or ineffective leadership.”

The fight between these two board members, the chair and the staff was first publicly displayed during a January 15, 2014 Chevron public meeting in Richmond, California. The Chevron refinery located in Richmond had a major and dangerous fire on August 6, 2012 that sent thousands of people to the local emergency rooms. This public meeting was to allow community input on the accident and for the CSB to have a formal vote to accept the information and recommendations of the report. The report had specific recommendations for the actual accident and general reforms to the way that the chemical industry is overseen. This was one of the reports that board member Rosenberg allegedly claimed would not be approved until the chairman was pushed out of his position by September 2014.

According to knowledgeable sources within the CSB, it usually takes four to six weeks to have staff reports on accidents reviewed by the board members for comments and questions before consensus is reached and the board votes to approve the report. However, for this report, because the two board members kept asking repetitive questions and were slow to respond to staff input, the process took five months. This delayed a public meeting that was thought to be the final vote on the cause of the accident and suggested changes in regulations by California to, as a test trial, institute a new safety regime based on European countries and Australian models known as the “safety case.”

The memorandum from the staff outlines what they allege these two board members did to publically blindside the chairman and the staff at the January 2014 Chevron public meeting in Richmond, California:

Leading up to the January 15, 2014 Chevron Public Meeting Board Member Rosenberg assured two CSB staff members on separate occasions that she supported the safety case regulatory recommendations and would vote for the draft Chevron regulatory report. One assurance of support was made just hours before the meeting. Board Member Griffon did not state his voting position to the CSB staff. Five hours into the meeting Board Member Griffon presented a prepared typed motion to postpone the vote to address various issues which were seconded by Board Member Rosenberg. The motion had not been shared with the leadership or the staff and many of the issues in the motion were taken directly from a letter by Congressman George Miller to the Board directing the staff to investigate regulatory issues related to Cal/OSHA and Contra Costa County. Many of the issues were either addressed in the CSB draft, not causally related to the Chevron incident or the case of abatement, subject to a dispute between Congressman Miller and the Governor of California. This interjection of outside political influence raises a concern over the independence of the CSB. While some on the Board had been provided the Congressman Miller letter in advance, the CSB investigators saw the letter for the first time at the start of the public meeting. Similarly, a letter received by some Board members from Professor Nancy Leveson addressing the report’s recommendations was not provided to the staff but was referenced by Board Member Rosenberg in her opening remarks. The Leveson letter was also referred to and submitted into the record by former CSB Chairman John Bresland, who acknowledged in his written comments that he was a Chevron contractor. Chevron outside legal counsel conferred with Professor Leveson about submitting the letter. Board Member Rosenberg also cited as key evidence an email she received from a UK writer, Rory O’Neill, but has yet to share that email with the investigators. The failure to provide the staff with what are asserted to be key documents and seek responses, providing misleading assurances about member positions on issues or support for reports, and failure to substantively engage the investigative staff on issues, questions and concerns – all speak to a seriously broken process. In fact, the actions by two board members in the Chevron review process and public meeting can only be explained by what appears to be a planned effort to mislead and publically embarrass the staff and agency. These actions not only harm the agency that you are sworn to serve but damage the cause of our preventative mission and the credibility of the work produced by CSB and its staff. These actions ultimately weaken our agency’s credibility with stakeholders, including organizations that many of us have worked with for decades.

A transcript of the long and contentious Chevron public board meeting shows that many of the local civic and environmental groups were in favor of the staff recommendations for test trial safety case regulations for refineries in the state of California, but a strange conglomeration of groups, the American Petroleum Institute, Chevron, the International United Steelworkers Union (but not, according to local sources, the local United Steelworkers Union), former Republican CSB Board Chair and Chevron consultant John Bresland, and liberal MIT professor Nancy Leveson all were either against any institution of the safety case model or believed that it needed to be studied more and that the report should be delayed. In the meeting, groups like the Natural Resources Defense Council and the Community for a Better Environment, along with local groups, endorsed the idea of the safety case regime. An Obama presidential task force on offshore oil wells specifically endorsed the idea of using the safety case regime for offshore oil.

Chairman Moure-Eraso, believing that he had Rosenberg’s vote to approve the Chevron report, put in a motion to accept the staff report. Rosenberg seconded the motion. However, Griffon put in a counter motion to delay the report and set up a study committee to study the safety case, despite the fact that staff members had presented the safety case scenario and took questions from all the board members. Rosenberg seconded Griffon’s motion and voted with Griffon to not approve the report. According to local news accounts of the meeting, both the chairman and the large audience were not happy with the results.

Truthout has obtained an email from Nancy Leveson to board member Beth Rosenberg dated January 10, 2014, five days before the Chevron hearing, giving her the letter that was cited in the hearing with this background language:

Beth,

A long-time acquaintance of mine contacted me about the CSB recommending that the State of California adopt safety cases. He works for a large, multi-national company who apparently does not believe in them. Actually, my previous experiences with this company is that they have a very good safety culture, truly care about safety, are among the best in the industry. Anyway, he asked me to write a letter to the CSB. I’ve done that and it will be presented this Tuesday meeting along with a copy of my paper on safety cases.

I have attached the letter that I sent. I thought it would interest you.

Nancy

The Leveson letter was presented in the Chevron meeting by John Bresland, who, although he claimed that he was speaking for himself, also admitted in his written testimony that he was a consultant for Chevron. There is some concern that Bresland may have broken or skirted revolving-door laws by testifying for Chevron after overseeing Chevron business in his 10 years on the CSB; part of that time he was chairman. He was on the board when the Chevron accident occurred. According to sources that are familiar with the witness list for the Issa hearings this week, Bresland may be one of the witnesses to testify at the hearing against the management of the CSB and may be working with the majority committee staff.

Truthout has also obtained a January 18, 2014 email, written after the Chevron report vote, from an attorney, Mark Farley, whose law firm Katten Law has Chevron as a client. The email reply was sent to CSB staff Dan Tillema, one of the investigative leads on the Chevron staff report and a signer of the February 2014 memorandum to board members Rosenberg and Griffon. In the email, Farley recommends Leveson to Tillema as a candidate to serve on the special board that Griffon put in his motion to study the safety case issue:

Dan,

Although I conferred with Dr. Leveson about the CSB recommendations and her submitting a letter, she has not been retained by Katten Law or CUSA [Chevron USA] in connection to this issue or the Richmond incident. I am not aware of Dr. Leveson having a professional or contractual relationship with CUSA, but it is something that she should be asked.

As you may know, I worked with Dr. Leveson on the Baker Panel in my capacity as one of the lead investigators. Dr. Leveson would be an excellent candidate for panel contemplated by the motion that the CSB adopted at the public meeting. She has a wealth of relevant experience and is respectful of the opinions of others. In addition, although she seeks consensus, she remains true to her opinions and professional judgment.

MLF

Farley, based on Leveson’s letter and report that was against the safety case regime, clearly knew that she would be unofficially representing Chevron’s point of view. A rebuttal to Leveson’s paper and theories on the safety case can be found here.

Dr. Leveson was contacted and asked to comment on how it came about that she was asked to submit her paper and letter to the board. She said that the correspondence was private and she had no more comments.

After the shock of the Chevron meeting, a planned meeting to approve a report on a similar Tesoro refinery fire in Anacortes, Washington was delayed. This accident included seven deaths, and it had been four years since the accident. The town, the Steelworkers Union, a local member of Congress and the families were very unhappy and vocal about the delay of the report. Board members Rosenberg and Griffon sent a letter to Rep. Rick Larsen (D-Washington), commiserating with him about the delay and claiming that the staff had done a cut and paste job on the Tesoro report from the Chevron report. This letter also became an issue for the four staff members in their February 2014 letter:

In a letter to Congressman Larsen dated January 27, 2014 Board Members Griffon and Rosenberg stated the investigative team “cut and paste” sections of the Chevron report in the Tesoro draft. The staff only learned about the letter from press reports and these concerns were never addressed to the staff. While the letter implies the safety case is a new issue inserted into the Tesoro report, the staff has been submitting detailed Tesoro plans and drafts that address the safety case since May 2013. This negative reference is offensive to a hard working staff – the safety case section of the Tesoro draft is a unique analysis of the Tesoro causal factors, Washington L&I regulatory gaps and how the safety case would play a more preventative role. The regulatory section also compares the Tesoro incident to Chevron arguing that issues related to both incidents make a strong argument for the much-needed reform.

This reporter attended the May 1, 2014 Tesoro public meeting in Anacortes. The national and local Steelworkers Union, the families and the public were not only concerned that it took four years for the report, but also were angry that the final report was not available to the public until shortly before the meeting. When the public speakers complained to the board about the lack of time to get a copy of the final report, Rosenberg and Griffon also complained and blamed the staff. According to sources who have knowledge of the process, the staff and the chairman had no idea whether either one of the board members would vote for the final report so there was negotiations, mainly with Griffon, that ran just hours before the Washington State meeting. A comparison of the original draft report to the final report kept much of the language of the need for a safety case regime, but in order to secure a vote on this report and not be delayed again, the staff removed all references in the final report of the words “safety case.” The original draft report had over 50 references to “safety case.” The final draft had none. Both Rosenberg and Griffon voted for a report that still explained the concepts of why a safety case regime was needed but had the actual term removed from the report. It was that last-minute debate that made copies for the public available only hours before the meeting.

Long before this staff memorandum was written, the CSB management and chairman had been targeted by the EPA inspector general, the Office of Personnel Management (OPM), and former Republican CSB board members claiming that the agency had management and morale problems. The EPA inspector general report did report a drop in the number of reports that were issued but much was blamed on what accidents were chosen to review and the chronic underfunding of the agency over the course of 10 years. The chairman and the managing director said that many of the problems were caused by lack of funding and that they had gone to Congress to fix the problem to no avail. They also claimed in rebuttals in the press and to the EPA inspector general that Congress also would intervene and insist that specific accidents be investigated. A review of these issues can be found in two reports by the Center for Public Integrity.

But the main complaints in the media on the management and leadership of the CSB agency were from former Republican board members, including John Bresland. In one of the Center for Public Integrity reports, Rosenberg and Griffon sided with these former board members to complain about the backlog of reports, belying the allegations put forth by the staff leaders that these two board members instructed the staff to slow down reports to make the management and leadership look bad and lose power. However, in another media report, Bresland admitted that the agency was underfunded even from the days that he was the chair and it affected the ability to get reports out. While serving as chair, Bresland tried to get more money from Congress when the CSB was required to investigate the enormously large BP Deepwater offshore well disaster but failed.

Griffon and Rosenberg wrote a February 18, 2014 rebuttal to the February staff memorandum. However, they did not do a point-by-point rebuttal of the alleged serious charges by the staff. Instead, they dismissed the numerous charges of slowing down reports to make management look bad and the raw ambition of wanting to trash the work of the committee to embarrass and perhaps force out the chairman to gain control. Instead, they dismissed the staff concerns with one line: “While we disagree with many of your contentions, we appreciate the hard work and dedicated service of all the CSB staff and welcome the opportunity to discuss ways to improve the processes in our agency.”

Ironically, the rest of the memorandum from Griffon and Rosenberg complained that the staff set up a report schedule and meetings that were too ambitious and the process needed to slow down to “ensure the highest possible quality reports.”

Rosenberg and Griffon also stressed that there needed to be better communication and more transparency so that the staff and the board would know where each side stands. “Fully transparent, deliberative board meetings are the best way for the Board to serve the public and be accountable to the public.”

They also said that they were looking forward to meeting with the four staff members to discuss the issues and problems.

However, the staff wrote back in a February 28, 2014 memorandum that they were very distressed that Rosenberg and Griffon did not attend a meeting set up for them to discuss the outstanding issues and that both board members said that they could not meet with the staff until April. From the memorandum:

However, we understand from Daniel [Horowitz] that you state you are both unavailable until mid-April to discuss our concerns. We are very discouraged that neither of you attended the scheduled Board Quorum meeting to discuss our memo on Thursday, February 27. We respectfully suggest that such an elongated timeframe before we begin a constructive dialogue is not conducive to resolving the critical issues that remain open. Specifically, our core mission work of issuing investigation reports is currently paralyzed.

During a lengthy interview for this article, Rosenberg said that she was “mildly concerned” about the staff memorandum that alleged that she was trying to oust Moure-Eraso as chair and had ambitions to serve in the role of chair, but she was concerned about staff harassment of people below them. She denied any of the allegations and claimed that Don Holmstrom, one of the four authors of the staff memorandum, had bullied and harassed the other three staffers into signing the staff memoranda. She said that she heard that the woman who signed the document was crying as she was forced to do it. Truthout, after numerous interviews with staff who wanted to remain anonymous, said that such charges were baseless against Holmstrom. A message left at Griffon’s home was not returned.

Rosenberg said that she voted against the safety case issue because she was concerned that the safety case regime had a “lack of transparency” and relied on “weak government and weak labor.” She also blamed the management staff for causing the problems and dysfunction in the agency. She said that Chairman Moure-Eraso delegated too much authority to the staff. On an ironic note, both Griffon and Rosenberg were graduate students under Moure-Eraso when he was a professor at the University of Massachusetts, Lowell and he was the one that presented Rosenberg with her doctoral hood at graduation. He also recommended her for the job with the CSB.

In an interview, Moure-Eraso said that he was incredulous when he read the February staff memorandum and saw what his two past students had allegedly said and done to the staff. He is disappointed in what he saw as a sacrifice of the mission of the agency to personal power struggles. He believes that exploring the concept of the safety case regime is an innovative step in not just reacting to chemical accidents but to help be proactive in preventing them in the future. He understood why industry would be against more regulations and the safety case but does not understand why the United Steelworkers would have such a powerful campaign from their national headquarters to defeat an idea instead of trying in a limited way to see if it could help.

Mike Wright, one of the United Steelworkers’ health and safety staff who has spearheaded the drive against the safety case, said in an interview that his main concern is that a successful safety case regime would require strong worker participation and he does not believe that that United States, unlike Norway, England and Australia, had a strong enough worker movement to make it work. He said that the steelworkers have unionized 70 percent of the refineries in the United States, and yet even though the intent of the Chevron recommendations was to test trial in California refineries and not change other types of chemical safety regulations, that it would not work. Griffon used to be a consultant to the United Steelworkers and Rosenberg openly claims close ties to workers and especially the United Steelworkers.

Rosenberg resigned from the CSB on May 31 to return to academia, telling BNA Bloomberg that she feels that she can do more good from outside the agency than in it. She said that the “ill-defined role of board members in relation to the chair, as well as in relation to the staff, made it difficult to have any meaningful influence.”

The safety case regime, which was once popular in the search for new ways to prevent chemical accidents, has fallen victim to this political fight in the CSB. The National Institute for Occupational Safety and Health (NIOSH), a part of the Centers for Disease Control and Prevention, has a yearly contest to fund small study projects. For fiscal year 2015, a proposal to study the effectiveness of the safety case regime was submitted and came in second place in over 50 entries. However, according to a source in NIOSH, the study has been postponed and effectively killed and NIOSH has removed its positive literature and testimony from its website. It is suspected by several sources in the government that Chevron and parts of the United Steelworkers were responsible in reaction to the CSB chair and staff promoting the idea.

Now the CSB board and staff will be dealing with a hearing in the highly political House Oversight and Reform committee with Chair Darrell Issa. Issa, who is known for his bare-knuckled partisan investigations of Benghazi and the IRS, as well as other anti-Obama investigations, is planning a hearing on Thursday entitled, Whistleblower Reprisal and Management Failures at the US Chemical Safety Board. There is no witness list or details on the committee’s site as of the publication of this article. Sources familiar with the hearings believe that the hearings will be airing the complaints of past Republican CSB board members and chairs, including John Bresland. Rosenberg plans to testify and Griffon will submit written testimony. The Bloomberg BNA May 27, 2014 story on Rosenberg’s exit gives an idea of the tenor of the hearings by heavily quoting Bresland and other past Republican board members as they attack Moure-Eraso’s leadership and the internal management of the CSB.

However, the title of the hearing is puzzling because, according to records, during Moure-Eraso’s tenure as chair, no CSB staff member who filed whistleblower complaints with the US Office of Special Counsel has lost their job, grade or any pay.

Meanwhile, the four civil servants who wrote the February memo and took on two presidential appointees to, in their minds, stop the politicization of their investigations, never got their meetings with Rosenberg and Griffon. They are continuing to try to clear their investigation backlog on serious chemical accidents and to be prepared to send their limited investigative staff out to the next serious accident to try to protect the public. Their work will continue despite the political games and power plays of corporations, unions and congressional committees. However, any future efforts to innovate or even enhance regulations to help prevent accidents like the poisoning of the drinking water in West Virginia or prevent a deadly refinery accident may now just be tilting at windmills.