The US Chemical Safety and Hazard Investigation Board (a.k.a the Chemical Safety Board or CSB) is a small agency with a noble mission — and a short and troubled history.
The agency’s trials and tribulations took another turn last week when CSB Chair Katherine Lemos, a Trump appointee, announced her resignation, only half-way through her 5-year term. Lemos stated in a letter to the President that “’Recent priorities of the Board have eroded my confidence in our ability to focus’ on the independent agency’s mission.”
Despite the announcement, Lemos stated in an email to staff that her resignation would not be effective until July 22. Lemos was reportedly joined in her exodus by Bruce Walker, a senior adviser who she know from her former position at Northrup Grumman. Lemos was a highly controversial appointee and her tenure has been plagued by accusations of mismanagement of funds, failure to issue reports and battles with other board members over management of Board operations.
The CSB has not had a chair that served out their full term since 2007. Lemos was the third consecutive CSB chair to resign before the end of the term. Her predecessor, Vanessa Sutherland, resigned in 2018 with two years left in her term to become a much better paid Vice President for legal affairs at the Norfolk Southern railroad. She’s now Executive Vice President for Legal Affairs at Phillips 66, an oil company that falls under the CSB’s jurisdiction. And Sutherland’s predecessor, Dr. Rafael Moure-Eraso. Moure-Eraso resigned in 2015 while under investigation by Congress and the Inspector General for mismanagement of the agency.
The CSB has not had a chair that served out their full term since 2007. Lemos was the third consecutive CSB chair to resign before the end of their term.
President Donald Trump was no fan of the CSB, proposing to eliminate the agency in each of his budgets. Trump argued that the board’s focus on regulation had “frustrated both regulators and industry” (which many think was the CSB’s intended purpose.) Although Congress never went along with killing the agency, the Trump administration refused to fill the Board’s empty seats, appointing only Lemos to run the agency alone while a growing staffing shortage resulted in a rapidly rising backlog of unfinished investigations and reports.
Congress recently confirmed two additional Board members nominated by Biden, Steve Owens and Sylvia Johnson, but failed to confirm a third Biden nominee, Jennifer Sass, a highly qualified long-time Natural Resources Defense Counsel scientist. Sass was a victimized by Republicans, such as West Virginia Senator Shelley Moore Capito who claimed that “Dr. Sass’s criticism of the chemical industry included deriding the EPA for engaging with the American Chemistry Council about implementing the Toxic Substances Control Act in a .transparent manner.” Capito added that those statements show “that she’s not the right person for a board committed to transparency.”
Protecting Workers and Communities
The CSB was authorized by the Clean Air Act Amendments of 1990 in the wake of catastrophic chemical plant accidents in this country, like the Philips 66 explosion, which killed 23 workers in 1989, and incidents around the world, like the Bhopal chemical release that killed thousands in India in the mid-1980s. It’s a tiny agency, with a budget of less than $13.4 million, five board members and at its peak, a staff of less than 50.
Its early years were plagued with problems and management struggles, but agency probably reached peak effectiveness in the mid 2000s. During that time, mostly under the Chairpersonship of Carolyn Merritt, the Board issued numerous major reports and significant recommendations covering reactive hazards that had cause numerous explosions and deaths, a report and recommendations after the 2005 explosion at the BP Texas City refinery, a report resulting from an explosions and deaths at a Daytona Beach wastewater plant that called for OSHA coverage of public employees, and a major report on combustible dust hazards that called on OSHA to issue a standard — just over a year before the catastrophic sugar dust explosion at Imperial Sugar outside of Savannah, Georgia.
Although the agency has no enforcement authority, its value lies in conducting root cause analyses of chemical disasters and issuing recommendations to government agencies like OSHA and EPA, as well as industry associations and labor unions. OSHA and EPA can enforce and issue penalties for violations of their Process Safety Management Standard and Risk Management Program, which regulate safety in chemical plants. The CSB, on the other hand, has no enforcement authority, but can go way beyond OSHA or EPA regulations to address other causes of incidents, and then issue recommendations urging the federal and state agencies, companies, industry associations and labor unions to address them.
The work of the agency has never been more needed. Chemical fires, explosions, leaks and other harmful incidents continue to occur every few days.
The work of the agency has never been more needed. Chemical fires, explosions, leaks and other harmful incidents continue to occur every few days. The CSB tends to focus on major incidents, but there are an average of 142 incidents per year on average across the country, and data show there has been no significant decline in incidents for years. And people living near and working at chemical plants pay the price as workers are killed and injured and people in surrounding communities need to shelter in place or to seek medical treatment. And chemical plant disasters often lead to job loss and economic disruption as plants are closed for repair — or permanently.
Lemos’s Legacy: Failure to Meet the CSB’s Mandate
In her email to the staff, Lemos boasted that she had “contributed significantly to restoring the integrity and efficiency of the CSB in completing its mission. ” But her legacy tells otherwise.
Under her chairpersonship, the small agency hasn’t lived up to its potential. While reports and recommendations are the CSB’s priority, the agency currently employs only nine investigators, ten fewer than it employed years ago. They’ve made no discernable progress in hiring during her tenure. And the agency has a huge and unprecedented backlog of 20 site investigations. Current investigations include a 2018 Husky Energy Refinery explosion and fire in Superior, Wisconsin, a June 2019 explosion and massive fire at Philadelphia Energy Solutions Inc. oil refinery, and a 2021 LyondellBasell chemical release that killed two workers.
In July 2021, a coalition of 22 chemical safety organizations sent a letter to Lemos with a list of recommendations “to right the path of the CSB and assist in fulfilling the goals of protecting communities, workers, and our planet.” The suggestions included “a plan explaining how CSB will complete each open site investigation, with a target date for issuing final reports and recommendations.” The letter also asked Lemos to issue “a staff recruitment, training, and retention plan” and to request “direct hiring authority” that would accelerate hiring.
The House Energy and Commerce Committee also held an oversight hearing in last September which found that Lemos had made very little progress in moving the agency forward.
leaves a leadership vacuum at a time when the agency is woefully short-staffed and behind on its work. It’s also an opportunity for improved leadership, and we urge President Biden to fill her seat quickly….A fully staffed CSB led by an expert in the field of chemical and process safety can be a critical conduit for change for an industry too dangerous to be allowed to police itself.
Intimidating Undocumented Workers
During a 2021 investigation into 6 deaths at the Foundation Foods poultry plant in Gainesville, Georgia processing plant after a liquid nitrogen leak, a coalition of 55 workers rights groups acting under the umbrella of the Georgia Immigrants Alliance, sent a letter to the CSB, accusing agency leadership of collaborating with the U.S. Immigration and Customs Enforcement’s (ICE). Because many of the plants workers were undocumented, the groups stated that such discussions raised “serious concerns that the workers and their families at Foundation Food will be threatened and intimidated if they cooperate with federal or state investigators, or that they will be further discouraged from seeking necessary medical care after exposure to hazardous liquid nitrogen.”
CSB’s senior advisor Bruce Walker admitted being in contact with ICE, but denied any conversations with ICE or the Department of Homeland security about undocumented workers at the plant. Nevertheless, CSB investigations depend on the testimony of workers who are familiar with plant operations and workers who are fearful of talking to government investigators are unlikely to be cooperative.
In addition, Walker’s actions reportedly
prompt[ed] an internal uproar among staff who did not sign up to be involved in enforcing immigration laws, but who are focused on the agency’s mission of ensuring safety regardless of their personal political views. One person close to the agency said it is “very disheartening” to agency staff. Another source wrote, “This is causing a large stir among investigators.”
“We do the best we can to protect people and the information they provide,” one person with close ties to the agency said. The contact with ICE is “a kick in the gut regardless of where you stand on immigration. … This ICE thing made us appear to be liars.”
Along with her failure to hire staff and complete reports, Lemos was also accused of misconduct. Last year, the group Public Employees for Environmental Responsibility (PEER), calling her a “complete disaster,” obtained and circulated spending receipts showing Lemos had spent tens of thousands of dollars on expenses including furniture, airfare and hotels.
Her resignation comes as she is facing a slew of Inspector General probes and growing calls for her ouster due to a pattern of misconduct, including, according to PEER:
- Unilaterally changing her permanent duty station from the CSB’s Washington, DC headquarters to San Diego, CA, her personal residence, without notifying the White House as required. She did so after pandemic waiver authorities allowing her to continue charging taxpayers for her cross-country expenses (such as the rule against paying for lodging within 50 miles of the employee’s duty station) had lapsed;
- Budgeting $50,000 for travel between her home and the agency’s headquarters, charging her travel costs (airfare, hotels, meals and other expenses) to taxpayers; and
- Spending $20,000 on office renovations for her CSB office in Washington, DC, far exceeding the $5,000 limitation on office renovations for new agency heads.
Lemos has also instigated power struggles with Biden appointees on the Board. In April 2021, she issued Board Order 28 which gave herself authority over CSB’s spending and budget preparation, among other key powers like the agency’s budget and expenditures of more than $50,000, and made them solely the chair’s responsibility. Those responsibilities had been subject to approval by the entire board.
Owens and Johnson, the two Biden-nominated board members argued that Board Order 28, issued before Biden’s nominees took office, gives too much power to the chair. They voted to get rid of some of the changes and Lemos is challenged the vote on procedural grounds., accusing Board Order 28 of giving “total authority over everything was unprecedented in the history of the board’s operations.”
Another particular area of contention has been on a “misconduct” section of rules governing the board, according to The Hill.
The language includes provisions that would allow one board member to report another to authorities including the FBI, the White House or Congress for such offenses as an unauthorized disclosure of nonpublic information. Johnson described the order as “punitive.”
“There is a laundry list of offenses that we could potentially be disciplined for — and that discipline includes, but [is] not limited to, being shut out of your email, being reported to the FBI, Congress, the White House — you name it,” Johnson said.
“It was punitive, and certainly didn’t lend itself to any kind of collegial work environment among board members, who are highly professional people and pretty responsible,” she added.
The Biden Administration needs to fill the remainder of seats on the Board and appoint a Chair with the qualifcations to ensure that the Board resolves its growing backlog and issues quality reports.
According to former CSB board member Rick Engler, Board members
need to have an understanding not only of the technical nature of chemical incidents (e.g., pipe corrosion led to a toxic release), but also of the underlying causes, such as inadequate safety systems, poor management oversight, lack of worker/union participation, and/or gaps in government standards and enforcement. Recommendations need to focus on major national policy reform rather than simply an ineffective facility by facility approach to achieve safety change.”
And the CSB needs a chair, according to Engler, who not only incorporates those values, but also has experience running an agency and who can work in a collaborative and collegial manner with colleagues.
And finally, according to Engler, Board members and the chair need to conscious of environmental justice concerns and “support racial justice and class equity and is sensitive to the disproportionate impact of chemical incidents on communities and site workers.”
Unfortunately, the Biden administration doesn’t seem to be off to a good start. On June 8, Biden nominated Catherine J.K. Sandoval to be a CSB board member. Sandoval is a Law Professor at Santa Clara University who teaches and conducts research on energy, communications, antitrust, and contract law. She also served a six-year term as a Commissioner of the California Public Utilities Commission. She appears to have no discernible expertise in chemical plant safety and California chemical safety activists have never heard of her.
If Sandoval is confirmed, there will still be two board positions open, including a new chair. For the sake of the board’s future and chemical safety in the United States, one hopes that the next nominees are a better fit to the mission of the CSB.