From Bad To Worse at Scandal-Ridden Safety Agency

White House is reviewing EPA IG report on Chemical Safety Board.

WAXAHACHIE, TX - OCTOBER 03: Waxahachie fire fighters battle a massive fire at the Magnablend chemical processing plant on October 3, 2011 in Waxahachie, Texas. The burning chemical plant is not far from several residential areas and Wedgeworth Elementary School. (National Journal)

The independent agency that investigates chemical accidents is under fire from seemingly every corner of the government—from the White House on down.

The White House is reviewing a damning inspector general report against the head of the Chemical Safety Board, Rafael Moure-Eraso. Members of Congress also are unhappy, with several committees on the case. And there's a federal investigation into the alleged leaked identity of an agency whistleblower.

It's yet another bit of unwanted attention for the board, which has been beset for years by accelerating internal troubles, shoddy morale, and a backlog of incomplete reports.

A controversial motion passed late in the night at a recent meeting in California has only added fuel to the fire, since it appears to close observers and insiders that it wipes out a number of reforms while consolidating power in the chairman's office.

"It's a stunning turn of events "¦ that has very much upended the staff," said one CSB employee, who spoke under the condition of anonymity to protect their job. "Things are just not getting better."

Moure-Eraso's tenure ends in June, but he may not make it that long. An as-yet unreleased report by the EPA inspector general accuses the chairman and two top agency officials of violating the Federal Records Act by using outside email systems to conduct official government business and not capturing those emails in the agency system.

EPA IG Arthur Elkins Jr. outlined the findings to the House Oversight and Government Reform Committee last week. A new subpanel covering environmental and energy issues, along with the House Energy and Commerce Committee and Senate Environment and Public Works Committee, are looking at the CSB.

The findings were referred to the White House, which is reviewing the report.

"It is essential that agency heads lead by example and promote a culture of compliance with the Federal Records Act," an administration official said in a statement. "The Chemical Safety Board Chairman must take steps to ensure that all federal records belonging to the agency are preserved on official accounts."

Moure-Eraso declined to comment for this story and has not made public statements about the report.

The IG report—which could be released by the Oversight Committee as early as this week—is the result of a winding investigation in which CSB was accused of stonewalling investigators and refusing to turn over documents. Elkins said last week that CSB has since "substantially" complied with document requests, but could not say if all requested information had been turned over.

The matter was rooted in allegations that the identities of CSB whistleblowers at the Office of Special Counsel were leaked, a matter which is separately under review by the Office of Personnel Management's office of inspector general.

In a statement, CSB spokesman Hillary Cohen said the latest report related to emails sent before 2013 that were transferred to a federal records system 18 months ago. Cohen said CSB would be "providing guidance to all employees on the use of personal email that might relate to CSB business, since it appears this has been a common practice among various current and former CSB board members and staff."

The use of personal email is not necessarily a violation if the emails are forwarded and stored on an official system, which makes them searchable by inspectors and subject to the Freedom of Information Act (every agency crafts their own compliance plans for the Federal Records Act). But the use of personal emails for official business can raise red flags and feeds into a deeper concern about CSB management's penchant for consolidating power at the expense of other staff and board members.

The latest and most egregious move by senior officials, critics say, was a 22-page motion passed by board member Manuel Ehrlich just weeks into his new position.

Late last month, the board presented its long-awaited final findings and safety recommendations from a 2012 Chevron refinery fire in Richmond, Calif., and took public comments at an evening meeting there for four hours. Near the end of the meeting, Ehrlich introduced a motion that would, in essence, consolidate power with Moure-Eraso and wipe out a number of reforms made following a 2000 opinion by the Justice Department Office of Legal Counsel.

Mark Griffon—the third member on the short-handed board—tried to table the unexpected motion in order to at least give him more time to read it (it had not been announced in any public documents). With no one to second the motion, Griffon was outvoted and quickly saw his share of power in the agency drop.

The "California coup," as one observer called it, scrubs a number of reforms meant to balance power between the chairman and other board members, such as requirements that the chairman consult on hiring decisions, designations to the Senior Executive Service, and expenditures over $50,000.

"It looks like a takeover of the agency," said Bill Wright, a former board member whose term expired in 2011. "Early on, the agency had some really rough roads because we were fighting over authority, but we tried to balance that. "¦ You're basically now handing it over to one person."

In introducing his motion, Ehrlich, who has more than five decades of industry experience, said he was concerned about "clarification and in some cases solidification" of agency management. "I have never worked in an organization where there is not a clear delineation of responsibility for implementation of administrative tasks."

In a later statement to National Journal, Ehrlich pushed back on the notion that the motion was meant to benefit Moure-Eraso, saying that since his term ends in June, it will have "minimal impact on his work."

"Furthermore, it takes from the shoulders of the board members the responsibility of dealing with such administrative issues as approving payments for copy machines, mandatory payments to the other agencies and ministerial functions and allows them to concentrate on the mission of the agency," he said.

But some staff members don't see the motion as simple housecleaning, saying it consolidates power with Moure-Eraso and two top officials, general counsel Richard Loeb and managing director Daniel Horowitz. Last summer, member Beth Rosenberg quit after just a year because she felt ignored, and staff members have told National Journal that the agency is a toxic environment.

The timing is another issue. A fourth member—Richard Engler—was confirmed by the Senate at the same time as Ehrlich and Engler, but has yet to join the board, meaning a delay could have meant a 2-2 tie. A fifth nominee, Kristen Kulinowski, was nominated by the White House last month, but has yet to see a Senate hearing.

The Ehrlich order also ended investigations into a pair of accidents at the Silver Eagle refinery in Utah, releases of hydrofluoric acid from the CITGO Corpus Christi refinery that began in 2009, and a 2010 zinc fire at a Horsehead facility in Pennsylvania.

The board had issued technical reports and recommendations in the Silver Eagle and CITGO cases, while the Horsehead facility in question has closed. Ehrlich said in California that there was "no realistic opportunity" for a more comprehensive agency report. The agency currently has six investigations listed as open and its investigative backlog has long been a sore point.

All that, said a former staff member familiar with the board motion, adds up to an agency where "productivity is poor, attrition is high and work just doesn't get done." The three closed cases, the staffer said, were just more proof of CSB coming up short in its mission.

"Sure, they issued little crumbs long ago," the former employee said. "CSB was created to do comprehensive investigations with meaningful recommendations to change national policy and improve prevention. "¦ To close these cases like that is to celebrate a failure as a success."

Correction: The CSB's website lists six investigations as open. A previous version of this article had an incorrect number. This article has also been clarified to reflect that allegations of the leaked identity of CSB whistleblowers at the Office of Special Counsel are alleged. This article has also been updated to clarify the nature of a Justice Department opinion concerning CSB management.

Click here to view a letter from Manuel Ehrlich responding to this report.

This story was updated on Feb. 12.