[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
WHISTLEBLOWER REPRISAL AND MANAGEMENT FAILURES AT THE U.S. CHEMICAL
SAFETY BOARD
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 19, 2014
__________
Serial No. 113-120
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on June 19, 2014.................................... 1
WITNESSES
The Hon. Rafael Moure-Eraso, Chairman, U.S. Chemical Safety and
Hazard Investigation Board
Oral Statement............................................... 6
Written Statement............................................ 8
The Hon. Arthur A. Elkins, Jr., Inspector General, U.S.
Environmental Protection Agency, Accompanied by Patrick
Sullivan, Assistant Inspector General for Investigations, U.S.
Environmental Protection Agency
Oral Statement............................................... 12
Written Statement............................................ 14
The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of
Special Counsel
Oral Statement............................................... 21
Written Statement............................................ 23
The Hon. Beth Rosenberg, Former Board Member, U.S. Chemical
Safety and Hazard Investigation Board
Oral Statement............................................... 27
Written Statement............................................ 29
APPENDIX
June 18, 2014, letter to Reps. Issa and Cummings from Rep. Waxman 68
Majority Staff Report ``Whistleblower Reprisal and Management
Failures at the U.S. Chemical Safety Board,'' submitted by
Chairman Issa.................................................. 72
Feb. 10, 2014, Memo to CSB Board Members Regarding Rebuilding
Trust, submitted by Rep. Connolly.............................. 156
Answers to questions submitted for the record from USCSB......... 160
WHISTLEBLOWER REPRISAL AND MANAGEMENT FAILURES AT THE U.S. CHEMICAL
SAFETY BOARD
----------
Thursday, June 19, 2014,
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:00 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Mica, Turner, Jordan,
Chaffetz, Walberg, Gosar, Farenthold, Woodall, Meadows,
Cummings, Maloney, Tierney, Connolly, Speier, Kelly and Lujan
Grisham.
Staff Present: Melissa Beaumont, Majority Assistant Clerk;
Will L. Boyington, Majority Deputy Press Secretary; Molly Boyl,
Majority Deputy General Counsel and Parliamentarian; Ashley H.
Callen, Majority Deputy Chief Counsel for Investigations;
Sharon Casey, Majority Senior Assistant Clerk; Jessica L.
Donlon, Majority Senior Counsel; Kate Dunbar, Majority
Professional Staff Member; Adam P. Fromm, Majority Director of
Member Services and Committee Operations; Ashok M. Pinto,
Majority Chief Counsel, Investigations; Andy Rezendes, Counsel;
Laura L. Rush, Majority Deputy Chief Clerk; Katy Summerlin,
Majority Press Assistant; Sarah Vance, Majority Assistant
Clerk; Krista Boyd, Minority Deputy Director of Legislation/
Counsel; Jennifer Hoffman, Minority Communications Director;
Peter Kenny, Minority Counsel; Chris Knauer, Minority Senior
Investigator; Elisa LaNier, Minority Director of Operations;
Juan McCullum, Minority Clerk; and Dave Rapallo, Minority Staff
Director.
Chairman Issa. The committee will come to order.
The Oversight Committee exists to secure two fundamental
principles: first, Americans have a right to know that the
money Washington takes from them is well spent and, second,
Americans deserve an efficient, effective Government that works
for them. Our duty on the Oversight and Government Reform
Committee is to protect these rights. Our solemn responsibility
is to hold Government accountable to taxpayers, because
taxpayers have a right to know what they get from their
Government. It is our job to work tirelessly in partnership
with citizen watchdogs to deliver the facts to the American
people and bring genuine reform to the Federal bureaucracy.
This is our mission statement.
Without objection, the chair is authorized to declare
recesses in the committee's hearing at any time.
Today we are here to perform one of the committee's most
basic core functions: to identify and root out waste and
mismanagement in the Federal bureaucracy. Usually, when we talk
about waste and mismanagement, we talk in terms of dollars and
cents. Today we are going to discuss waste and mismanagement at
the U.S. Chemical Safety and Hazard Investigation Board, or the
CSB, in terms of public safety and lives that can be lost.
CSB's mission is to independently investigate significant
chemical incidents and hazards, and effectively advocate for
implementation that results in recommendations to protect
workers and the public and the environment.
Over the course of an eight month investigation, the
committee has identified significant problems at the CSB that
undermine its public safety mission. The narrative that emerged
from thousands of pages of documents and interview
transcriptions and the like are fairly simple: the chairman's
management style created a hostile work environment which
caused experienced career investigators and at least one of his
fellow board members to leave the agency.
CSB's investigations of significant chemical accidents took
far longer than they should have. The board failed to make
recommendations that might have prevented future accidents in a
timely way. And that is why the CSB is under scrutiny by this
committee and others, including former chairman of this
committee, Henry Hyde.
The Chemical Safety Board exists to investigate industrial
chemical accidents, uncover their causes, and provide safety
recommendations based upon their investigations. Congress
expects the agency to issue its investigations and reports in a
timely manner. In fact, Senate recommended that these reports
be issued within six months of any accident. Unfortunately,
under the direction of the current CSB chairman, Rafael Moure-
Eraso, the agency is failing to meet these requirements, it is
failing to fulfill its mission, and that is why we are here
today.
On September 5th, 2013, the EPA inspector general sent a
seven day letter to Congress regarding CSB's refusal to
cooperate with its investigation into whether one of the
chairman's closest advisors learned the identities of CSB
employees who had filed whistleblower complaints with the
Office of Inspector General and Special Counsel.
I want to make it very clear here today. This committee
would like to receive more seven-day notices than we do. But on
the few that we receive, they are a 911 call to this committee
and, as a result, we take them very seriously.
Allegations in the seven day letter were very serious. The
letter signaled a severe problem with an agency and prompted us
to begin our own investigation. The committee's investigation
of CSB revealed an agency in crisis, unable to properly
function and serve its mission because of poor leadership and
mismanagement. Our investigation found the CSB chairman
improperly exercised his responsibility, intimidates staff, and
undermines the well established precedent that designates the
board, not the chairman himself, as the agency's ultimate
authority.
Current and former CSB employees informed the committee
that the chairman's heavy-handed management practices, blatant
disregard for authority and protocol, and the erosion of a
collegial work environment have devastated the CSB in much the
same way as we saw at the Nuclear Regulatory Commission a few
years ago. The facts bear out the allegations we heard from
current and former CSB employees. There is an extraordinarily
high rate of attrition at CSB, investigations have languished
for years, and several employees disclosed to us that they
feared retaliation from agency management for cooperating with
the committee's investigation.
Concerns about CSB's problem have been bipartisan. For
instance, after a CSB investigation of an explosion in
Washington State that killed seven workers dragged on for four
years, Congressman Rick Larsen and Senator Patty Murray were
vocal in their criticism, and Congress agreed. With respect to
the delay reported on the accident, Senator Murray wrote, I am
extremely frustrated that after nearly four years the CSB has
still failed to produce a final report. This delay is
emblematic of poor leadership at CSB, which continues to do a
disservice to workers, companies, and the economy. Without
dramatically improved performance, substantial leadership
changes at CSB will be necessary.
I agree with the Senator. The final report was finally
issued on May 1st, 2014, more than four years after the
accident. Considering the importance of industrial workplace
safety, the disorder at the CSB is too great for us to ignore.
The goal of this hearing is to effectuate change and to allow a
struggling agency in charge of public safety to regain that
focus on public safety that both sides of the dais wants.
The committee appreciates the witnesses appearing here
today. I look forward to hearing their testimony, and I believe
that the questions and answers will help the American people
understand an agency in crisis.
Before we hear from the ranking member, I want to remind
our witnesses today that this committee will not tolerate any
reprisals, any effort to block Federal employees or contractors
from working cooperatively with the inspector general, the
Office of Special Counsel, or Congress. And, in fact, I want to
make it very clear to do so is a crime.
I now recognize the ranking member for his opening
statement.
Mr. Cummings. Thank you very much, Mr. Chairman. I want to
agree with you on what you just said. There must be maximum
cooperation, and I join you in that statement.
The Chemical Safety Board was created as part of the Clean
Air Act amendments of 1990, and the agency's mission is to
investigate industrial chemical accidents, a very, very serious
mission that goes to life and death.
CSB is a small agency, but it conducts very important
investigations. For example, in 2007, CSB produced a landmark
report on the BP Texas City Refinery explosion that killed 15
workers and injured 180 people.
In addition, just two weeks ago, CSB formally approved and
publicly released a new report on the Deepwater Horizon
explosion and well blowout, one of the most devastating
environmental disasters in history. This new CSB report finds
that the blowout preventer, a key piece of equipment that is
supposed to prevent catastrophic loss of oil, failed to seal
the well because drill pipe buckled. CSB also identifies
multiple deficiencies that demonstrate Transocean and BP did
not treat or manage it as safety critical device.
In addition, CSB concludes that this failure occurred for
reasons the offshore drilling industry remains largely unaware
of. CSB also identified significant limitations in the U.S.
regulatory regime, leaving industry and the public vulnerable
to another major accident. This report provides a more in-depth
analysis than any previous investigation into serious issues
related to the safety systems used by deepwater drilling
operations and it deserves very close scrutiny.
But, to date, no committee has held a hearing about the
report or its findings to ensure that they are fully addressed
so this does not happen again. It is sad today the committee is
holding a hearing about the management challenges at the CSB.
Let me make clear that I believe this is a worthy topic for the
committee to investigate, but it is a shame that we did not
spend the same amount of time and energy on the substance of
the board's work.
As part of its investigation, the committee interviewed
nine current and former CSB employees, and received briefings
from the agency's EPA's Office of Inspector General and the
Office of Special Counsel. As a result, it is clear there are
serious management problems that need to be addressed. And
certainly when there are management problems, they have a
tendency to trickle down and affect the effectiveness of any
agency.
This is not, however, a new revelation by this committee.
Yesterday, Representative Henry Waxman, the ranking member of
the House Energy and Commerce Committee, sent a letter to our
committee outlining his own oversight efforts. Representative
Waxman helped establish the CSB in 1990 and has engaged in
various oversight since its inception. Last November,
Representative Waxman sent a letter to the CSB chairman and to
other board members expressing concern about management
challenges and asking a series of questions. I will be
interested to know what happened with those recommendations.
All three board members responded and Representative
Waxman's staff engaged in consultations over several months
with them about how the board can function more effectively and
efficiently. On May 2nd, 2014, Representative Waxman sent seven
recommendations to the CSB. Each board member was given the
opportunity to comment on the recommendations before they were
finalized. I believe this process and these concrete, sensible
recommendations are a prime example of how responsible
congressional oversight can and should be conducted.
In his letter yesterday, Mr. Waxman urged our committee to
use this hearing to pursue constructive solutions to these
challenges. He wrote, I believe that the best oversight makes
constructive recommendations to improve agency performance.
That is what I have tried to do through my oversight of the
CSB, and I hope you will take a similar approach. Your hearing
will serve as a valuable purpose if it provides an opportunity
to discuss constructive ideas for improving CSB's internal
management and operations so that the agency can focus on its
core mission and investigative work.
I cannot agree more with these words, and I ask that Mr.
Waxman's full letter and his recommendations be entered into
the official hearing record.
Chairman Issa. Without objection, it will be placed in the
record.
Mr. Cummings. Thank you.
To conclude, I know that the chairman invited Mr. Waxman
this morning, a few minutes before the hearing, to come and be
with us. Unfortunately, he could not. But I am hoping that we
will be able to meet with him, Mr. Chairman, since this has
been something that he has taken a great interest in and follow
up, because I think he could be very helpful to us.
To conclude, I hope this committee will review these
recommendations very carefully today and use them as a tool to
improve the CSB. It is critical that the CSB function properly.
This agency is responsible for investigating tragic accidents
and making recommendations to protect the safety of workers and
the public. We need board members and CSB staff to work
together to ensure that the agency can carry out this very,
very critical mission.
With that, Mr. Chairman, I yield back.
Chairman Issa. Thank you.
All members may have seven days to submit opening
statements.
At this time I would ask unanimous consent that the 86-page
staff report which is also posted on the website, be placed in
the record. Without objection, so ordered.
That staff report, by the way, contains all of the
recommendations that Mr. Waxman has made, but goes beyond that,
and we look forward to working with former Chairman Waxman.
Oh, I apologize. I forgot, it is a joint report with the
Committee on Science, Space, and Technology.
I would like to post on the board very briefly 18 U.S.C.
1505. And I would like the witnesses to be aware that under 18
U.S.C. 1505, Obstruction of Proceedings, pertinent part, it
says, whoever--well, I will just let you read it. In a
nutshell, what I want to make very clear is there are criminal
penalties for even suggesting that it would not be liked,
acceptable, or encouraged to speak to Congress. I want to make
that very clear. It will be part of our line of questioning
today.
It is now my pleasure to welcome our witnesses. The
Honorable Rafael Moure-Eraso is the Chairman of the U.S.
Chemical Safety and Hazard Investigation Board; the Honorable
Arthur A. Elkins, Jr., is the Inspector General of the U.S.
Environmental Protection Agency. With him is Mr. Patrick
Sullivan. He is the Assistant Inspector General for
Investigations for the United States Environmental Protection
Agency, or EPA. And with us again is the Honorable Carolyn N.
Lerner. She is Special Counsel at the U.S. Office of Special
Counsel. Lastly, on our request, and we appreciate your being
here, the Honorable Beth Rosenberg is the former board member
of the U.S. Chemical Safety and Hazard Investigation Board.
Pursuant to the committee's rules, would you please all
rise to take the oath and raise your right hands?
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
[Witnesses respond in the affirmative.]
Chairman Issa. Please be seated.
Let the record reflect that all witnesses answered in the
affirmative.
I understand there will only be one opening statement from
the two IG representatives. That will be fine; either one can
make it.
We now recognize Dr. Eraso.
WITNESS STATEMENTS
STATEMENT OF THE HONORABLE RAFAEL MOURE-ERASO
Mr. Moure-Eraso. Thank you. Good morning. I am Rafael
Moure-Eraso, Chairperson of the U.S. Chemical Safety Board, or
CSB. I would like to thank you for inviting me to speak today.
First, a quick overview of my background. I came to this
great Country as an immigrant from Colombia more than 47 years
ago and I have been a U.S. citizen for 33 years. I hold
engineering degrees, as well as a doctorate in environmental
health. I served for 23 years as a university professor and
have a lifelong commitment to workers' health and safety. I
consider my five-year tenure at the CSB, which ends next year,
as an opportunity for me to give back to this Country. And, as
a father and a grandfather, I want to ensure that the accidents
we have investigated do not befall other communities or other
families.
The CSB is an independent Federal agency known
internationally for the exceptionally high quality of our
accident investigations. We have deployed to over 100 incidents
since 1998. The CSB's work has resulted in over 70 major
investigation reports. We have released over 25 investigation-
based safety videos, which are used for training purposes by
almost every one of the top 50 U.S. chemical companies.
In the past year, the CSB has faced its most challenging
cases ever. This includes the Deepwater Horizon blowout and
explosion in the Gulf of Mexico, which investigation was
requested by bipartisan leaders in the House. We are
investigating the West Fertilizer accident in Texas, where a
plant explosion killed 15 people and devastated a town. Our
investigation of the Tesoro refinery in Washington State
revealed industry-wide problems maintaining key equipment. Two
recent CSB reports on the Chevron refinery in the Bay Area of
California have led to dramatic changes making refineries and
chemical plants safer in that State. And the CSB continual
comprehensive investigation into the chemical contamination of
drinking water that occurred in Charleston, West Virginia
earlier this year.
Despite this activity, the CSB has come under some
criticism for not investigating more accidents and closing more
cases faster. I assure you we are rapidly closing our backlog.
We are holding this hearing a total of six public meetings to
release findings and reports in impacted communities. However,
as I have told the IG staff, we are a very small agency charged
with a mission of investigating far more accidents than we have
the resources to tackle.
Since I was appointed chairperson in 2010, I have worked
very hard to improve the operations and management of the CSB
to work within the resources we have. This involves
reorganizing to create clear lines of authority in the
investigation process, as well as accountability. This was
absent before my appointment. I have taken significant steps to
improve communications and transparency among board and staff,
including establishing a workplace improvement committee and
engaging a board facilitator. I brought diversity into
leadership and I have hired an organizational consultant to
work with staff members on developing solutions to their
problems. I am happy to discuss any of those initiatives in
more detail.
Let me say that I have known my fellow board members, Dr.
Rosenberg, former member, and Mr. Griffin for about 30 years.
They were former students of mine. With one exception, all of
the votes on CSB reports that have been involved have been
unanimous, so the work of the board is getting done.
I also want to very briefly mention the subject of alleged
retaliation that you may be discussing. I assure you there is
no employee I am aware of who may have lost his or her job,
grade, or any pay as a result of complaints made to the Office
of the Special Counsel.
In summary, I am fully committed to improving the work
environment in the CSB. We have become a highly effective and
respected Federal agency, even while operating on a shoestring
budget and staff. We are often told we are one of the most
efficient and best bargains in Government. I am proud of our
work at the CSB.
I look forward to answering any questions you might have on
the CSB operations. Thank you, Mr. Chairman.
[Prepared statement of Mr. Moure-Eraso follows:]
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Chairman Issa. Thank you.
Mr. Elkins.
STATEMENT OF THE HONORABLE ARTHUR A. ELKINS, JR.
Mr. Elkins. Good morning, Chairman Issa, Ranking Member
Cummings, and members of the committee. I am Arthur Elkins,
Inspector General for the EPA and the CSB. Thank you for
inviting me to appear today.
While my written statement includes additional detail and
broader concerns regarding the CSB, the critical matter that I
wish to call to this committee's attention is an OIG
investigation that led to the issuance of a seven day letter.
Background information will provide a context.
In September 2012, the EPA OIG received a complaint from a
CSB employee alleging that a high level Office of Special
Counsel employee had disclosed to the CSB official the
identities of CSB whistleblowers who had filed confidential
complaints with the OSC. The complaint also alleged that the
OSC employee had acted to thwart an OSC investigation into the
complaints.
Subsequently, the FBI and the EPA OIG conducted an
investigation into whether the OSC employee had obstructed
justice. The DOJ's Public Integrity Section declined criminal
prosecution. However, the criminal investigation had revealed a
key administrative issue warranting further investigation into
possible violations of the Whistleblower Protection and Privacy
Acts.
Because the matter fell outside of the EPA OIG's
jurisdiction and the OSC determined it had a conflict of
interest, the OSC asked OPM's Office of Inspector General to
investigate.
Meanwhile, in February of last year, the EPA OIG received a
new complaint alleging that CSB officials were using non-
governmental email accounts to conduct official CSB business,
and we opened a new investigation.
In May 2013, the OIG requested records of communications
for a specified time period pertaining to official CSB matters
sent to Chairman Rafael Moure-Eraso via non-governmental email
accounts. The only CSB representative who responded to that
request was a private attorney hired by the CSB in connection
with the whistleblower complaints. The private attorney sent
only some of the records, and some of those were heavily
redacted. He said that he was withholding other records based
on attorney-client privilege and/or attorney work product
privilege.
In July and August 2013, the OIG made repeated requests for
a full and complete production of the requested records.
Although the CSB acknowledged having the records, it still
refused to produce them.
The Inspector General Act is clear that offices of
inspectors general have unfettered access to agency records.
The Act also requires each IG to report to the head of an
agency on particularly serious or flagrant problems, abuses, or
deficiencies. The mechanism for doing so is commonly referred
to as a seven day letter.
On September 5th, 2013, the OIG issued a seven day letter
to Chairman Moure-Eraso. To date, the CSB has provided no
records, instead, asserting to Congress that the agency is
obliged to protect attorney-client privilege with respect to
third parties, which the CSB asserts excuses production to the
OIG.
The IG Act does not provide an exception based on
privilege. By refusing to provide the requested information,
the CSB is preventing the EPA OIG from conducting a complete
investigation and, in turn, from providing Congress with a
meaningful report on all of the CSB's activities.
In conclusion, the OIG's investigation has been dormant for
many months pending the refusal of the CSB to produce the
requested documents. The OIG stands ready to carry out its
mission; however, without congressional follow-up, our seven
day letter is without teeth. We look to Congress to direct the
CSB to produce the records.
When the CSB tells its OIG that it will not comply with the
OIG's request for information, it is disregarding the Act that
Congress wrote for the protection of taxpayers that Congress
intended. OIG must be able to obtain access to documents,
depend on the cooperation of agencies, and conduct our work
without delay.
When we cannot, we fail the American public in several
ways: first, repeated attempts to complete an audit or
investigation mean that we are not attending to other deserving
work; second, inefficiency thrives unchecked and potential
wrongdoing evades both notice and consequences; third,
potential behind-the-scenes misconduct could change the
direction of and/or evidence available; and, finally, public
health is at risk. The CSB's mission deals with matters of life
and death.
Mr. Chairman, this concludes my prepared statement. My
Assistant IG for Investigations, Patrick Sullivan, and I will
be pleased to answer any questions you may have.
[Prepared statement of Mr. Elkins follows:]
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Chairman Issa. Thank you.
Ms. Lerner?
STATEMENT OF THE HONORABLE CAROLYN N. LERNER
Ms. Lerner. Thank you, Chairman Issa, Ranking Member
Cummings, and members of the committee. Thank you for the
opportunity to testify today. This is the third time I have
testified before this committee. Most recently, in November
2013, I discussed the OSC's findings on widespread misuse of
overtime payments at the Department of Homeland Security. Our
work with whistleblowers helped to identify over $37 million in
annual misuse of overtime and provided momentum for bipartisan
legislation to address this issue; and I know that Congressman
Chaffetz has been very active in helping with that legislation,
and I thank you for those efforts.
I appreciate the ongoing partnership with the committee in
rooting out waste in Government operations and protecting
whistleblowers. I also thank Chairman Issa and Ranking Member
Cummings for your successful efforts to modernize and improve
the Hatch Act.
OSC is an independent investigative and prosecutorial
agency. We protect the merit system for over two million
Federal civilian employees in four distinct areas: we protect
Federal workers from prohibited personnel practices, primarily
retaliation; we provide a safe and secure channel for
whistleblowers to report waste, fraud, abuse, health and safety
issues; we enforce the Hatch Act, keeping the Federal workforce
free from improper partisan politics; and, finally, OSC
enforces the Uniform Services Employment and Reemployment
Rights act, or USERRA.
With that backdrop, I would like to now discuss OSC's cases
involving the Chemical Safety Board, CSB. First I want to
describe very briefly OSC's process for investigating
retaliation cases generally.
After an initial intake, complaints are referred for
investigation. The majority of cases referred for investigation
are then screened for mediation by OSC's Alternative Dispute
Resolution Unit. If a case is not resolved through mediation,
it is then sent to our Investigation and Prosecution Unit.
Investigations routinely involve the following steps at the
OSC: first, we interview complainants; second, we issue
document requests; third, we interview witnesses; and, finally,
we interview subject officials.
After an investigation, agencies frequently agree to
informally resolve complaints at OSC's request. When agencies
do not agree to informally resolve the complaint, we can
prosecute cases before the Merit Systems Protection Board.
This committee has requested information on OSC's
investigation into retaliation complaints at CSB. While I can
certainly provide background on procedural issues, of course, I
can't comment on the substance of pending investigations. Doing
so could affect the outcome of the cases and really hurt our
office's ability to resolve these cases. Also, as the final
decision-maker on these cases, I can't prejudice any future
action by OSC or influence the parties' willingness to settle.
With those concerns in mind, the following is a summary of
significant procedural and investigative steps that OSC has
taken to resolve the claims of whistleblower retaliation at
CSB.
In October 2012, several CSB employees filed whistleblower
retaliation complaints with OSC. These employees alleged
retaliation for whistleblowing and other protected activity,
including the filing of earlier OSC complaints in 2011. That
2011 complaint, which was also filed by additional CSB
employees, alleged that CSB management engaged in improper
hiring practices.
After receiving the retaliation complaints, OSC assigned
the cases to an investigator. That investigator reviewed the
submissions and scheduled interviews with the complainants,
which began October 25th, 2012.
On December 28th, 2012, OSC requested documents from CSB
with a deadline for providing the information by January 7th,
2013. In May 2013, CSB responded. They provided a disk with
most of the responsive information. But CSB withheld some
information based on claims of attorney-client privilege, and
to date has not provided this information. CSB has also not
provided us with a privilege log or an explanation of the
individual documents that were withheld from OSC's review.
In September 2012, OSC attempted to schedule interviews of
the subject officials. OSC issued a subpoena to the primary CSB
management subject official to ensure that the interview date
would not continue to slip and OSC could complete its
investigation. Each of the subject officials was interviewed
between December 18th, 2013, and January 14th, 2014.
OSC's investigation provided the foundation for resolving
one of the retaliation complaints, which recently settled in
April 2014. This retaliation complaint was closed pursuant to
that settlement. The other cases remain open and are pending in
our Investigation and Prosecution Division. We are very
actively working to settle those cases.
I thank you again for the opportunity to testify. I would
be very happy to answer the committee's questions.
[Prepared statement of Ms. Lerner follows:]
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Chairman Issa. Thank you.
Dr. Rosenberg.
STATEMENT OF THE HONORABLE BETH ROSENBERG
Ms. Rosenberg. Thank you, Chairman Issa, Ranking Member
Cummings, members of the committee. I was requested to testify
today regarding my tenure as board member at the U.S. Chemical
Safety Board. I was nominated by President Obama and confirmed
by the Senate on January 1st of 2013 for a five-year term. I
resigned as of May 31st, 2014, after 17 months. For the
previous 16 years, I was a professor at Tufts University School
of Medicine, where I taught occupational and environmental
health in the public health program.
The mission of the board is unique and important: to
investigate the root causes of major incidents in the chemical
facilities and oil refineries, and to make recommendations
based on the evidence to prevent those incidents from happening
again.
The CSB faces certain challenges in fulfilling its mission
that are beyond its control. It is intended to be an expert
advisory body similar to the National Transportation Safety
Board, but it has no means, other than the weight of its
evidence, to ensure its recommendations are implemented. With
current staffing and resources, it cannot possibly investigate
all the incidents and deaths that it should.
But there are four major challenges that are within the
control of agency leadership that must be addressed.
One, there is a chilled atmosphere. Staff has been formally
discouraged from talking to board members, according to an
email from the managing director. Some staff said they were
nervous about being seen talking to me, so we met outside of
the agency. There are no opportunities for staff and board
members to discuss issues openly. Those whose opinions differed
from those of senior leadership are marginalized and vilified.
At the CSB, disagreement is seen as disloyalty. Criticism is
not welcome and staff fear retaliation.
Two, governance is ineffective. Board members are excluded
from core policy functions. For example, Board Member Griffon
and I learned about the senior management's decision to
stonewall documents that were requested by the EPA inspector
general and the issuance of a seven day letter in the press. We
saw the CSB's response to the IG after it was sent. As part of
an executive order on chemical facility safety and security,
the President called on the CSB to enter into memorandum of
agreement with several agencies. This was spurred by complaints
lodged with the White House about interagency conflicts in the
course of CSB investigations.
After negotiations with the DOJ were underway, we were
briefed, but we had no say in determining the CSB's position.
This is troubling, because the DOJ has the discretion to
enforce the CSB's subpoenas, and cooperation is essential.
Other matters involving interagency relations, such as how to
deal with demands for CSB records from EPA or whether a report
should be delayed for a few months because another agency is in
the midst of a criminal prosecution, were decided without a
vote of the board. Board Member Griffon and I did not know
about the disposition of these policy issues until after the
fact. Finally, it is the position of CSB's general counsel that
senior leadership that the board orders, despite being voted
upon and serving as the basis for orderly conduct, have no
legal significance, so they are sometimes circumvented, which
contributes to agency dysfunction.
Three, there is a lack of accountability both from the
staff to the board and the board to the public. The agency has
a backlog of investigations partially due to understaffing, but
mainly due to lack of planning. There is no comprehensive
investigation plan to deal with the backlog. The action plan
consists of a list of unfinished investigations, but they are
not prioritized, nor is there any discussion of the priorities.
In a public meeting in July of 2013, Mr. Griffon and I made
a motion to have a public meeting to get a status report on all
open investigations, and to clarify the scope and time line for
the reports. With the current governance model, a request by
the majority of the board is treated as irrelevant, so still
there is no plan. The absence of a plan is a major contributor
to low staff morale because staff don't know the priorities and
complain about getting yanked from one project to the next as
priorities shift.
Our fundamental job as board members is to set high
standards for quality of evidence, analysis and
recommendations. Yet, when Mr. Griffon and I raised questions
about the lack of data supporting a recommendation to
restructure safety regulation of the Nation's oil refineries,
we were portrayed as delaying the report, disrespecting the
investigators, and ``siding with the worst and most unfair
critics of the CSB.''
Fourth, there is a lack of transparency. The board rarely
conducts a deliberative public meeting. Almost all votes on
agency matters are taken in private through a notation vote.
Public meetings are almost exclusively productions
choreographed to maximize media coverage, but where public
questions and comments are largely ceremonial; they have no
impact because the investigation reports are already finalized.
Regular Sunshine Act meetings would be a way to interact with,
and be accountable to, our stakeholders and other members of
the public.
There are obvious ways to deal with all of these problems.
Instead, a work improvement group was formed, and facilitators
and consultants have been hired. I came to realize that these
are hollow gestures intended to deflect criticism while
fundamentally changing nothing. The staff of the CSB, and the
American people, deserve better.
Thank you for your consideration.
[Prepared statement of Ms. Rosenberg follows:]
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Chairman Issa. Thank you.
Dr. Moure-Eraso, one of the allegations that has permeated
the testimony so far, after yours, was a question of
retaliation. In your opening statement you said no one had lost
pay, nobody had been fired. Was anyone reduced or eliminated,
to your knowledge, in any way shape or form, their work duties
that may have been construed as retaliation?
Mr. Moure-Eraso. No, Mr. Chairman. A person was transferred
from a position of senior executive to another position of
senior executive. That is the issue on that, they are
describing as retaliation.
Chairman Issa. Okay. So they think it is retaliation; you
disagree.
Mr. Moure-Eraso. I definitely disagree, yes.
Chairman Issa. Were you in a senior level meeting in which
any discussion that could be in any way construed as to
discourage people from speaking with congressional
investigators was discussed, including, but not limited to,
statements such as we would prefer you not speak to members of
Congress or investigators? Anything along that line?
Mr. Moure-Eraso. I don't believe so. I might have a
conversation with Dr. Rosenberg when I find out that she was
going to come, and I discussed with her if she was going to
present testimony. But I was not trying in any way to interfere
with her coming here.
Ms. Rosenberg. That is correct.
Chairman Issa. Okay. Do you know a gentleman named Dan
Tilman? Tillema?
Mr. Moure-Eraso. Dan Tillema? Yes. He is one lead
investigator in our Denver office.
Chairman Issa. It has been alleged, and we have a
whistleblower on this, that a senior CSB official recently told
a group of CSB investigators not to speak with committee staff.
Do you know anything about that?
Mr. Moure-Eraso. I don't know anything about that, Mr.
Chairman.
Chairman Issa. Okay, let me ask the question one more time
very carefully. A whistleblower has informed us that a senior
CSB official recently instructed CSB staff not to talk to
anyone in Congress. Specifically, the aide's exact words were:
``Someone from Congress will be calling you regarding an
investigation. We would rather you not speak with them. We
can't tell you not to. You can choose to do that if you want,
but we'd rather you didn't.''
Any lines, any words like that ring any part of your
memory, sir?
Mr. Moure-Eraso. No. I never have said those words, and I
am not aware of anybody that has said it to Mr. Tillema.
Chairman Issa. So if we were to not believe Dan Tillema,
then we would believe these words weren't said. If we are to
believe him, then do you believe those words were said? Because
that is what Dan Tillema has told us.
Mr. Moure-Eraso. I don't know what Mr. Tillema told you.
What I am telling you is that you are asking me if I make any
attempts to discourage for him talking----
Chairman Issa. No, did you have a conversation with Dan
Tillema that could have caused him to think that those words
were appropriate to say?
Mr. Moure-Eraso. I absolutely and categorically deny that I
ever had a conversation with Mr. Tillema.
Chairman Issa. Will you agree to speak to Mr. Tillema and
make it clear that those kinds of words would rise under 18
U.S.C. as a criminal obstruction of Congress? To discourage
from speaking to members of Congress is in fact an obstruction,
in this chair's opinion.
Mr. Moure-Eraso. I don't understand your question. Could
you repeat it, please?
Chairman Issa. Does Dan Tillema work for you?
Mr. Moure-Eraso. Yes.
Chairman Issa. A whistleblower has told us that he said
that. I want to tell you right now that I believe that is a
criminal obstruction of this committee's work in the way that
the whistleblower said it was said. Will you agree to inform
him of that and speak to him about whether or not he said it
and get back to us?
Mr. Moure-Eraso. I most certainly will discuss with him
this issue, yes.
Chairman Issa. Dr. Rosenberg, you left this board and you
had only recently joined it. I would presume that you had
intended to and hoped to serve all six years on this board, is
that correct?
Ms. Rosenberg. That is correct.
Chairman Issa. If the environment were conducive and
shared, as boards normally are, would you still be there?
Ms. Rosenberg. Of course.
Chairman Issa. We have alleged, I have alleged in my
opening statement that we have found a hostile work environment
not just for the board, but for employees and investigators.
Would you concur with that?
Ms. Rosenberg. Yes. I think the level of dysfunction
reached such a level, and I had no hope of it improving, so I
left.
Chairman Issa. Thank you.
Doctor, I want to go over something very briefly with you,
then I am going to go to the ranking member. There will
probably be a second round. This committee has received only
two seven day letters during my tenure, and only one for my
predecessor. It is an extraordinary event. It shouldn't be, we
should get more of them, but it is an extraordinary event. IGs
view this as no options left. You already have received
subpoenas, and apparently not answered to the satisfaction of
the investigators. The claim of attorney-client privilege from
a Government agency is extremely limited, extremely limited,
and Government or Government-related documents that in fact are
generated under the work of the Federal Government, paid for
during time or with resources of the Federal Government, are
not, in the ordinary course, allowed to become attorney-client
privilege. The absence of a privilege log is unacceptable
anywhere in America.
So I want to very briefly explain something to you. My
intention, if it is not resolved by the end of the week, would
be to issue my own subpoenas that would mirror all of the
subpoenas that are outstanding and not properly responded to.
They would have a one-week deadline. If they are not responded
to, we would seek to hold you in contempt and refer it for
criminal prosecution. I am not going to speak for the Executive
Branch, but I can tell you that that process takes us less than
30 days before we are sitting there with a U.S. attorney on a
criminal contempt that, in fact, by statute, says that the U.S.
attorney shall prosecute; not may prosecute, shall prosecute.
So I would strongly encourage you, at the conclusion of this,
to use the time of your board and your time with your attorney
to reach a successful conclusion lest I go through a process
that I don't want to go through and should not have to go
through on behalf of independent investigators who have
absolute authority and expectation to receive all appropriate
documents. And if there is a limited privilege, that it be
clearly explained in a privilege log.
Doctor, do you understand that?
Mr. Moure-Eraso. I understand that, yes, Mr. Chairman.
Chairman Issa. Thank you.
We now recognize the ranking member.
Mr. Cummings. Thank you very much, Mr. Chairman.
As I was listening to you, Dr. Rosenberg, I want to thank
you for being here. I was thinking about management styles.
When I hire people, I hire the brightest and I hire people with
compassion, and then I let them do their job. I always try to
hire people smarter than me. And as I listened to what you were
saying, it seems as if I do believe that leadership, in most
instances, come from the top. In other words, if you have a
dysfunctional leader, everything goes bad.
You made some very strong statements, and I have no reason
to believe that--it is hard for you to even come here and do
that, and I understand that. But when we are looking at all of
this, sometimes I have noticed on staffs you could have one
person that kind of messes up the whole staff, but, on the
other hand, you may have problems throughout. I mean, when you
look at the problems you have stated, are they coming from a
few, is it a few people, is it one person? You must have
thought about this a lot. Any time you leave a position as
early as you did, I am sure you had a lot of conversations
about this, even if only in your own mind. Your comments?
Ms. Rosenberg. I think the senior leadership is the
problem. The agency is broken; it needs to be rebuilt. And I
think the senior leadership, the combination of ignoring board
orders, which provide for board participation in policy
matters, and the generally--there is a theme in the agency that
disagreement is disloyal, and I come from an academic
background where disagreement provides room for debate, and it
should be open. And that is one of the reasons I am going back
to my academic environment, because that is where you get to
the truth, and that is missing in this agency.
Mr. Cummings. Do you know why the staff was afraid of being
seen communicating with the board members? Do you know why that
was?
Ms. Rosenberg. Yes. There is a memo from the managing
director discouraging staff from doing that. It is attached to
my testimony. And it was supposedly to provide more strict
order in the agency, but it had a very chilling effect.
Mr. Cummings. And do you believe that the atmosphere you
have described had a negative impact on the work products of
the agency?
Ms. Rosenberg. Yes.
Mr. Cummings. No doubt about it?
Ms. Rosenberg. Because a range of opinions couldn't be
considered; it was decided and the staff was supposed to
produce a report that would address the concerns of the senior
leadership. This is most prominent in the case of the whole
safety case regime debate.
Mr. Cummings. Now, Mr. Chairman, Dr. Moure-Eraso, how do
you respond to that? You have a board member who gets
appointed, and that is no little deal, and folks looking all
into her background and everything, having to be vetted and go
through all that, and then they don't stick around, she doesn't
stick around because of the things she said. What is your
response to that? Because I have to tell you the fingers are
pointing at you, my brother.
Mr. Moure-Eraso. Mr. Cummings, I would like to say that
probably it is a misunderstanding of former Board Member
Rosenberg of how Government agencies function. There are lines
of responsibility and there are lines of authority.
Mr. Cummings. But she talked about things happening that
were supposed to come under the board, that they were supposed
to be board votes, am I right, and that there was an end-
around. I mean, come on now.
Mr. Moure-Eraso. Well, you know, I would like to see what
specifics is she talking about. The principal function as a
board and for the board members is to examine carefully the
technical quality of the product that we put out and to vote on
it. Now, the votes that we took during the time that Dr.
Rosenberg was there, and the products that we produced, she
always voted and said that the reports were alright, that she
agreed with the reports, and she voted in the affirmative, with
the exception of the one that she is mentioning that we have
disagreements on the safety case.
Mr. Cummings. Okay.
Mr. Moure-Eraso. All the others she voted in favor for. I
mean, she had an opportunity, ample opportunity to provide her
ideas and to try to change the reports when they are presented
to her. This is not imposing to anybody, it is an open process
that is very well delineated in our system.
Mr. Cummings. Well, obviously, she doesn't feel that way.
Dr. Rosenberg, very briefly, please.
Ms. Rosenberg. Indeed, I agree with Dr. Moure-Eraso that I
did participate in investigations in that way, but the board,
as outlined in the Moss opinion, there have been battles around
the role of board members in this agency before. This Moss
opinion, written in June of 2000, nearly 14 years ago,
addresses the problems and the roles and responsibilities of
board members. And what my complaint was is that the board
members were marginalized from many decisions, many policy
decisions that had huge effects on the board, the functioning
of the board. So, yes, I agree, we dealt with investigations
together, in a collegial way, but there are other subjects,
like interagency relations, where we were completely
marginalized.
Mr. Cummings. Doctor, I am running out of time, but let me
just ask you this. Former Chairman Waxman made some
recommendations; he has been in contact with you all. What have
you done with regard to the recommendations? Can you give us a
progress report?
Mr. Moure-Eraso. Yes, I would be very glad, Mr. Cummings.
You know, if you look at the list of what Mr. Waxman sent to me
as his recommendations, one of the concerns that he had was
information that should come from the chair and the staff to
the board members. We immediately established a system by which
we open weekly meetings in which we requested that the board
members participate. In our weekly meetings, every staff member
describes the progress of the particular investigation or
action that is involved.
Mr. Cummings. He also suggested that you meet with the
board members, is that right? Did you do that?
Mr. Moure-Eraso. Exactly. He suggested that if any of the
issues that I identified in those weekly meetings, if a board
member would like to discuss additional things privately with
me or with any board member or with the staff, that they should
be made available for that. That has been established too. One
of the problems that we have, Mr. Cummings, is that the board
members tend to not spend a lot of time in Washington, DC. It
is very hard to really establish systems of communication when
the physical presence of the board members is hard to obtain,
but that has been established.
We also, in response to Mr. Waxman's concerns about the
staff complaints on their morale and their happiness in the
agency, as I mentioned before, we established a group, an
independent group, freely open group that we call the Work
Improvement Committee, that has been chosen among all the
staff, that have been meeting since December, and that we have
assigned a management consultant. The company is the Cardin
Corporation of St. Louis that is helping them to establish
processes and systems to improve the quality of work in the
agency.
Mr. Cummings. Dr. Eraso, I have run out of time, but I want
to thank you, chairman, for your courtesy. But I have to tell
you, sitting up here listening, it seems like the fingers are
pointing at you. I am just telling you. And some kind of way we
have to get passed that; we have to figure that out, exactly
how do we get this agency to functioning, because I think
several people said it already. When it is not functioning
properly, the American people suffer. And part of our job here
is to make sure that Government does what Government is
supposed to do effectively and efficiently.
Thank you, Mr. Chairman.
Chairman Issa. I thank you. If I could ask the indulgence
of the ranking member, I just want to read something from Dr.
Rosenberg's statement. This was produced to us November 1st,
2011, email from Daniel Horowitz, the Managing Director of this
organization. And it says, and I think it is important to have
it consistent with the ranking member's statement, it says,
Accordingly, I expect all managers and supervisors to keep me
abreast of recommendations and proposals they would like to
send to board members, and to seek my input before proceeding
to convey these recommendations directly to board members.
Dr. Rosenberg, I think the ranking member was trying to get
this. Is this the kind of thing that you saw standing in the
way of your getting the direct access board members would
expect in their oversight and fiduciary role?
Ms. Rosenberg. Yes, because I think everybody should be
able to talk to everybody in an agency. And, mainly, I don't
think staff should be intimidated from being seen talking to
board members. I had many meetings in the ladies room.
Chairman Issa. I have few.
[Laughter.]
Chairman Issa. The last piece of indulgence, I have served
on both public and private boards. What we are seeing here
today is not unusual to have as a debate. But I can tell you
that if we look back to what we did to the boards of Enron and
Worldcom and other corporations when their board members did
not, in fact, insist on direct access, communication, and, if
you will, fact-checking, should remind us all that board
members have an independent fiduciary obligation to do just
that, to have independent knowledge of everything that they
vote on and what the chief executive is doing.
Mr. Mica, thank you for the indulgence, of both the
chairman and ranking member of each other.
Mr. Mica. Thank you.
I think everyone on the panel would agree that the U.S.
Chemical Safety Board has an important mission and
responsibility. Dr. Moure-Eraso, yes? Mr. Elkins?
Mr. Elkins. Yes.
Mr. Mica. Inspector General of EPA Lerner?
Ms. Lerner. Extremely important.
Mr. Mica. Two of you that have looked at this, Mr. Elkins,
Mr. Sullivan, it is also important that we protect
whistleblowers and people who come forward with information
about misconduct within an agency. Did you see, through your
investigation, Mr. Elkins, mishandling of whistleblower
identity?
Mr. Elkins. Let me refer that question to Mr. Sullivan.
Mr. Mica. Okay. Mr. Sullivan?
Mr. Sullivan. Mr. Mica, yes, we received a lot of feedback
from employees of CSB alleging that they were being retaliated
against, and when their information went forward, they were----
Mr. Mica. So not only mishandling, but also retaliation.
Mr. Sullivan. Yes. That was the allegation, yes, sir.
Mr. Mica. Okay. And then, Mr. Elkins, I guess there is a
tool that is referred to as a seven day letter, which isn't
deployed that often. It is an IG tool, inspector general's
tool, is that correct?
Mr. Sullivan. Yes, that is correct.
Mr. Mica. Okay, so it is rarely done.
In September of 2013, there was a seven day letter
informing Congress of the Chemical Safety Board's refusal to
cooperate in an investigation and the mishandling of
whistleblower identities, is that correct?
Mr. Sullivan. That is correct.
Mr. Mica. Okay. Had you ever issued a seven day letter
before?
Mr. Sullivan. That was the first in my tenure.
Mr. Mica. Okay. Why did you issue a seven day letter in
this matter?
Mr. Sullivan. Well, sir, we obviously, before we get to----
Mr. Mica. You are hard to hear. Pull it up.
Mr. Sullivan. Obviously, before we get to the point of
issuing a seven day letter, we want to have discussions and
convey to the agency just how serious of a matter it is for us
to take that extreme measure. I have personally had
conversations with the chair and my investigators had
conversations with CSB staff requesting documents, letting them
know that we needed those documents in order for us to complete
our mission, and we were just stonewalled; it just didn't
happen.
Mr. Mica. You were just stonewalled.
Mr. Sullivan. Absolutely.
Mr. Mica. Okay. And so, again, the first time you had to
issue such a letter. What is the current status of your
investigation?
Mr. Sullivan. Right now, it is dormant, sir. We don't have
the information. We can't go forward until we have the
information.
Mr. Mica. Now, the whole thing sounds like a three-ring
circus in a very important agency with important
responsibilities of oversight. I don't know if the staff can
put up the list of the Chemical Safety Board investigations,
but I am told that most cases they are supposed to have a
majority vote of the board and they should issue a report in a
timely manner, usually within six months. It is interesting,
some of our staff interviewed some folks in this investigation
who had served on the board.
Ms. Rosenberg, I guess you are off the board; this isn't
your quote, but it says, do you feel the pace of investigations
has slowed in recent years? And this particular one, not
identified, said, Oh, yes, and I think it is certainly the
opinion of the outside yes. Not only has the pace of
investigation slowed, but what they would call the quality of
investigations has deteriorated as well.
Now, this is a former board member. Dr. Rosenberg, would
you agree with that?
Ms. Rosenberg. I don't know. I was only there for a year
and a half, so I don't know if the quality has deteriorated.
Mr. Mica. Okay, well, this is a former member who doesn't
want to be identified.
Ms. Rosenberg. Right. But I do know things are taking
longer.
Mr. Mica. Here is a list put up here of, in fact, the
investigations. BP investigation still incomplete; Silver
Eagle, 5.5 years; Citgo, 5 years, 4.7 pending. The list goes on
and on. This is an important responsibility with an important
mission, isn't that right?
Ms. Rosenberg. Yes.
Mr. Mica. And, again, it doesn't seem to me and also to
someone else who served on the board who stated in our
investigation that, one, that these investigations and reviews
are being done in a timely manner and then also the concern
about the quality; and, in the meantime, we have a three-ring
circus with whistleblowers coming forward, telling Congress
that this place is out of control, board members resigning,
chaos in one of our most important safety oversight agencies.
Mr. Chairman, this is not acceptable. I will work with you,
whatever steps we need to take to try to bring this agency into
control, acting responsibility and accountably. I will join
you.
And I yield back.
Chairman Issa. I thank the gentleman.
Dr. Rosenberg, you were trying to say something. No? You
are okay.
I think it is Mr. Connolly next. No, it was Mr. Tierney,
Ms. Kelly. It is Mr. Connolly.
Mr. Connolly. I thank the chair.
Dr. Moure-Eraso, I have the memo given by staff members, I
guess, to CSB board members, called Rebuilding Trust, dated
February 10th, 2014. You are familiar with that memo?
Mr. Moure-Eraso. Yes, I am. January 27, I believe?
Mr. Connolly. February 10th.
Mr. Moure-Eraso. February 10th.
Mr. Connolly. And you are cc'd on it by name.
Mr. Moure-Eraso. Yes. Okay, I am aware.
Mr. Connolly. And you have read the memo?
Mr. Moure-Eraso. I did read the memo, yes.
Mr. Connolly. This memo directs board members, who
presumably direct the agency, not the other way around, board
members and staff will not speak ill of agency employees; board
members must work sincerely and diligently to comprehensively
review reports in a timely way; board members must be open and
transparent with staff about their views and positions; they
should declare their positions and intentions prior to a public
meeting, thus nullifying the purpose of a public meeting; and
absent some unforeseen circumstances, those views should be
consistent with votes cast. Board members must cease and desist
from the extreme negative trashing of the agency to the public
and stakeholders. The investigative team lead supervisors group
requests to meet with the board members.
Who wrote this memo, and did you approve it? Do you approve
the sentiments of this memo?
Mr. Moure-Eraso. That memo, as far as I understand, was
written by the staff. I think it has signatories on it. I don't
have anything to do with it.
Mr. Connolly. What was your reaction to it? You are the
chairman.
Mr. Moure-Eraso. Well, there is some good points that they
made there.
Mr. Connolly. Good points? This is prescriptive. Doctor,
this is telling the board to stay in a place and the staff
substituting itself for governance. That is what this memo
says. I have been in public life for 20 years; I was in the
private sector for 20 years. I have never seen a document like
this, and a more inappropriate document like this. The public
trusts your agency to carry out its mission and you, sir, as
the chairman, to manage the agency. Instead, what this memo
tells us is they are managing you, sir. What was your reaction
to this memo?
Mr. Moure-Eraso. As I was telling you, I was concerned
about letters that were made public from board members in which
they say that they were ashamed of the work of the agency and
that they considered our reports cut and paste work, when our
reports are recognized in the world of----
Mr. Connolly. So what? So what, a board member is critical?
Mr. Moure-Eraso. Well, I would say this, that the
recommendation that board members don't try to discredit the
agency in public was a good recommendation.
Mr. Connolly. Really? Well, this goes far beyond that, sir.
This goes far beyond that.
Dr. Rosenberg, your reaction, since you are named in that
document?
Ms. Rosenberg. I was appalled by that, but you must
understand that that memo came a couple weeks after the Chevron
vote, where it was the only time that two of the board members
voted to postpone a vote; not to reject a report, but we asked
for more information on the safety case. So there was a lot of
hostility in the agency after that and that memo came in
response a couple weeks later to that, and it was appalling.
And I showed it to Waxman staffers because you know I was a new
board member and I thought, first of all, we are supposed to
deliberate, we are not supposed to declare our votes before a
public meeting. How disrespectful to the public.
Mr. Connolly. I would just say to my chairman, I mean,
honestly, there have been public hearings I have come to here
thinking I had one set of views and the public hearing has
changed my mind; there is new information illuminating
something. You are right, that is the purpose of a public
hearing, presumably. If we already have made up our minds--and,
by the way, this doesn't just say you ought to make up your
mind before--it says you must declare your position prior to
that public hearing.
Ms. Rosenberg. Appalling.
Mr. Connolly. Dr. Moure-Eraso, if you think this has some
good points, I have a problem with your tenure as chairman of
an agency.
Mr. Moure-Eraso. I hear you, congressman. I would like to
make the point that the signatories of those memos, I consider
them whistleblowers. They were reporting interference on their
work.
Mr. Connolly. That is not what this says.
Mr. Moure-Eraso. And I consider that they were trying to do
the best job that they could have. And again I report I am not
the author of that.
Mr. Connolly. If the chair would just allow me to finish.
Chairman Issa. Of course.
Mr. Connolly. Look, I want to protect whistleblowers too.
This is about a staff that is out of control. This is about a
dysfunctional culture. This is about lack of leadership at the
top, Dr. Moure-Eraso. This is about a board not doing its job
and a staff substituting itself for the board, which is
supposed to be the governance of the agency; and no wonder the
public must have some eroding confidence in your ability to
fulfill your mission.
But this is so prescriptive as to be entirely
inappropriate. No corporation, no business, no other public
sector entity would ever tolerate the sentiments, the
prescriptive sentiments that are outlined in this document. It
is, to me, a shocking document, and your reaction, sir, since
February 10th and today, under oath before this committee, I
think raises serious questions about your fitness to hold your
job.
I yield back.
Chairman Issa. Mr. Connolly?
Mr. Connolly. Yes, sir.
Chairman Issa. If we could enter into a quick colloquy.
Mr. Connolly. Of course.
Chairman Issa. You are independently elected to this board
known as Congress, right?
Mr. Connolly. That is right.
Chairman Issa. But I was elected chair.
Mr. Connolly. Yes, sir.
Chairman Issa. I have staff.
Mr. Connolly. You sure do.
Chairman Issa. Technically, all the staff of the committee
technically work for the chairman, even though they are
divided.
Mr. Connolly. That is correct.
Chairman Issa. Could you imagine if we sent a letter out
saying that you could not disagree with me and that you could
not have an opinion unless you issued it before, for example,
today's board meeting?
Mr. Connolly. Sir, I could not. And, furthermore, the idea
that staff tells me, by the way, not even you, I have to
declare my position a priori before we have the hearing. And
unless there are extraordinary circumstances, I am not allowed
to change that opinion when I vote. Now, I would say that some
of our colleagues certainly do that routinely in this body, not
just this committee, but we all reserve the right to change our
minds. We all arrogate to ourselves our sovereign right to cast
our vote as we see fit, without staff or even our colleagues
directing us otherwise; and that is what this document does,
Mr. Chairman. I would ask that it be, if it hasn't already
been, placed into the record.
Chairman Issa. Without objection, it will be placed in the
record.
Mr. Connolly. I thank the chair.
Chairman Issa. Doctor, I hope you see how you are being
mocked here by people who have the same situation you and Dr.
Rosenberg had; independently put on a board, one given the
title of chair, but not dictator.
Mr. Turner, you are recognized for five minutes.
Mr. Turner. Thank you, Mr. Chairman. I want to share all
the concerns of the members who have spoken. When you look at
an agency that has such incredible importance and the concerns
of its becoming dysfunctional, I think lives and certainly many
facilities are put at risk. So I am very troubled by the issues
that we are seeing today.
I am also very shocked about the revelations about the
possible retaliation against whistleblowers and mismanagement
of the Chemical Safety Board that appears to have essentially
crippled the agency's ability to fulfill its mission, and has
not only compromised the ability of employees to report waste,
fraud, and mismanagement, but public safety as well; and I want
to relate it to an incident that occurred in my district on May
4th, 2009.
An explosion and fire occurred at an environmental services
facility in my community. It was known as the Veolia ES
Technical Solutions, LLC facility in West Carrollton, Ohio. The
incident resulted in four individuals being injured, two of
which sustained severe injuries; eight damaged structures of
the plant and approximately 20 additional businesses and
residences in the area.
Mr. Elkins, you are the EPA inspector general. The CSB is
within your jurisdiction and Congress expects the CSB to issue
its reports in a timely manner. The case study on the incident
that occurred in West Carrollton, Ohio was issued July 21st,
2010. The incident occurred on May 4th, 2009, slightly over a
year after the accident occurred.
Mr. Elkins, in your experience, was this the time frame of
CSB's work typical prior to Dr. Moure-Eraso's joining the
board? The report was issued in about one year.
Mr. Elkins. Well, what I can do maybe in response to that
is give you some idea of investigations that were planned to be
completed and when the investigations were actually completed
based on reports that we have issued.
Mr. Turner. Please.
Mr. Elkins. Over the last six years, from 2007 to 2012, we
showed that the CSB investigations were planned to be
completed, 53 investigations, and of those only 31 were
actually completed, 58 percent.
To address your question specifically, in terms of timing,
in 2007, 10 investigations were planned, 10 investigations were
completed, 100 percent. 2008, 6 were planned, 6 were completed,
100 percent. Now we get into 2009; 6 were planned, 4 were
completed, 66.67 percent. 2010, 8 were planned, 4 were
completed, 50 percent. 2011, 15 were planned, 5 were completed,
33 percent. And in 2012 8 were planned and only 2 were
completed.
Mr. Turner. These reports are very important. Not only do
they give us an assessment of what occurred, but they give us
recommendations for the future.
Dr. Moure-Eraso, could you respond to this? As we look at
this, I am shocked to read in your written testimony where you
cite all of the accomplishments, but clearly you have to
acknowledge that this is an absolute failure. This has been a
point where this has become crippling.
Mr. Moure-Eraso. I disagree with you, Congressman.
Mr. Turner. Okay, let me back up, then. I thank you for
your disagreement. Do you consider a goal for these to be
completed?
Mr. Moure-Eraso. Absolutely.
Mr. Turner. Okay. Now pause. What is an appropriate time
frame that someone could expect performance?
Mr. Moure-Eraso. It depends on the quality of the report
that you would like to have.
Mr. Turner. Quality also includes the concept of finished.
Could you give us the time frame in which someone could expect
the work to be completed?
Mr. Moure-Eraso. It depends, Congressman.
Mr. Turner. Okay. Well, we are going to move on. I
understand that your performance will speak for itself, and
your inability to give us a time frame I think is reflective of
the fact as to why they are not being completed.
Now, doctor, you stated in your written testimony, since
2010 I have worked very hard to improve the management and
operations of the CSB. Under your leadership, the CSB has lost
seasoned investigators that could help the CSB fulfill its
mission and performance work in a timely manner. Given that
investigations have been significantly delayed under your
leadership, and certainly you have no other data that shows
that they have not been delayed, how would you rate the success
of the CSB in trying to rectify this delay?
Mr. Moure-Eraso. By the recognition of the quality of the
reports that we have produced. For example, the report on
Deepwater that we presented last week; the report in Tesoro
that took a lot of time but it has had a tremendous impact on
the refinery industry; our report in Chevron that changed the
way that Cal/OSHA investigated refineries in California. And I
could give you a list of the accomplishments that----
Mr. Turner. I think universally everyone on this
congressional committee sees that the loss of employees, your
lack of management, and the lack of completing work is a
critical failure on the part of your service. Thank you.
Chairman Issa. Thank you.
We now go to the gentlelady from California, Ms. Speier.
Ms. Speier. Thank you, Mr. Chairman, and thank you to our
witnesses who have appeared.
Chairman Moure-Eraso, you are aware that there was a
serious fire at the Chevron refinery in Richmond, California
that sent 15,000, 15,000 people to the hospital. Could you tell
me who the chairman was of CSB at the time the investigators
were sent to the refinery?
Mr. Moure-Eraso. That investigation was in charge of the
Winston office that is directed by Mr. Holstrom.
Ms. Speier. No, who was chairman.
Mr. Moure-Eraso. I was the chairman. I was the chairman
when that investigation was deployed to Chevron in Richmond in
2012.
Ms. Speier. When was Mr. Bresland chair?
Mr. Moure-Eraso. Mr. Bresland was chair until 2010. He was
a board member when we deployed on that place, but he wasn't
the chair; I was the chair.
Ms. Speier. You were the chair.
Mr. Moure-Eraso. He was a board member.
Ms. Speier. Is it true that Mr. Bresland resurfaced as a
paid consultant to Chevron, criticizing the very investigation
that he was involved in starting?
Mr. Moure-Eraso. Yes, it is true. He presented testimony
criticizing the findings of the report in the public meeting
that we had in Richmond in January this year.
Ms. Speier. And he started consulting with Chevron how long
after he left the board?
Mr. Moure-Eraso. I believe he testified one year and a half
after he left the board.
Ms. Speier. No, when did he start consulting?
Mr. Moure-Eraso. I don't know when he started consulting.
But when he identified himself as a consultant for Chevron
during the hearing was one year and a half after he had left
the agency.
Ms. Speier. So do you have a revolving door policy?
Mr. Moure-Eraso. Absolutely not. I think there are
regulations about that.
Ms. Speier. Well, revolving door policy would mean that you
do have regulations. I think you are getting assistance here.
Mr. Moure-Eraso. I am sorry, yes, yes. I misunderstood the
question. Yes, of course. We have to fulfill the Federal
regulations on this.
Ms. Speier. So did he violate that?
Mr. Moure-Eraso. It is not for me to----
Ms. Speier. But you would have to----
Mr. Moure-Eraso. Well, I lodged a complaint with Mr.
Elkins, with the IG, and asked him if he considered that this
was a violation.
Ms. Speier. What interaction did Mr. Bresland have with
board members or staff after he became a consultant for
Chevron?
Mr. Moure-Eraso. I really don't know. I only know about the
testimony that he presented in which he identified as a
consultant for Chevron.
Ms. Speier. Do you believe that there was a conflict of
interest there?
Mr. Moure-Eraso. I do believe it is a conflict of interest,
yes.
Ms. Speier. And what steps have you taken to address it?
Mr. Moure-Eraso. I called on the IG to investigate the
situation.
Ms. Speier. And has the IG investigated it, Mr. Elkins?
Mr. Moure-Eraso. I haven't heard from them since I made the
complaint.
Ms. Speier. Mr. Elkins, can you respond to that?
Mr. Elkins. Yes, I can. We did receive the complaint; it is
in process. Let me refer to Patrick Sullivan here, who is my
head of investigations, to give you more detail.
Mr. Sullivan. Yes. It is in my queue. It is scheduled to be
investigated; we have not yet opened that or start to begin
that investigation, but we will be looking into that matter.
Ms. Speier. So where are we in terms of the Chevron
investigation?
Mr. Moure-Eraso. Madam Congresswoman, the investigation we
have divided into three chapters----
Ms. Speier. Just tell me where you are in it. This happened
in August of----
Mr. Moure-Eraso. We finished the first part and we voted on
it and it was approved by the board. We presented the second
part in which we are in a public meeting, and that was the one
that was referred here that was delayed, and we are in the
process of going to editing of the third part for the final
report. But one is finished, one is waiting for a postponement
of the vote, and the other is in a draft form.
Ms. Speier. Let me just put this into perspective. The
National Transportation Safety Board is an organization
similar, larger than yours, with similar responsibilities. I
think it is a first rate operation. There was a gas explosion
in my district in 2010, killed eight people, destroyed 50
homes, and the NTSB took the pipe, carted it here to DC, did
the investigation, had a complete and comprehensive report done
in one year, with a series of hearings open to the public
previous to that.
This happened in 2012. It is almost two years and you are
nowhere near completing your work. I would suggest that that
shows a lack of ability to do the job.
I yield back.
Mr. Chaffetz. [Presiding] Thank you.
I now recognize myself for five minutes.
Ms. Lerner, you have played such a critical role in our
Government. We appreciate what you do and how you do it. I know
you can't speak specifically to what is happening here within
the CSB, but can you give us an idea of the scope? For
instance, how many complaints are you looking into at this
point?
Ms. Lerner. It is a little tough for you to give me that
information.
Mr. Chaffetz. I don't want you to step over any lines, but
I am trying to get an idea of how many and what types of
complaints you are looking into.
Ms. Lerner. I am very happy to tell you the types of
complaints. They are all retaliation complaints. And there are
at least several that are still unresolved. One settled a
couple months ago. We are actively trying to resolve the
remaining retaliation complaints.
Mr. Chaffetz. Is it typical that Government officials need
to be subpoenaed in order to secure their testimony in your job
and what you need to do?
Ms. Lerner. It is rare that OSC would have to issue a
subpoena.
Mr. Chaffetz. Why did you feel the need to have to issue a
subpoena in this case?
Ms. Lerner. We felt it was necessary to subpoena the CSB
management official because, quite frankly, in light of the
time that it was taking to produce documents and schedule the
interviews in the case, the investigation was taking too long.
Mr. Chaffetz. Okay. Thank you.
Mr. Moure-Eraso, have you ever used your personal email for
official business or communication?
Mr. Moure-Eraso. Well, yes, out of ignorance. At the
beginning of my tenure, I used to write drafts of positions
before I would put it as----
Mr. Chaffetz. When is the most recent time that you used
your personal email?
Mr. Moure-Eraso. We stopped that practice about a year and
a half ago because we realized how problematic it was.
Mr. Chaffetz. So you had been in that position for more
than two years before you realized that it was inappropriate.
Mr. Moure-Eraso. The board was telling me that I couldn't
use my private----
Mr. Chaffetz. Okay, thank you. Thank you. Can you tell me
about Chris Warner? Who is Chris Warner?
Mr. Moure-Eraso. Chris Warner is the former general counsel
of the Office of the Chemical Safety Board.
Mr. Chaffetz. And did he remain as the general counsel?
Mr. Moure-Eraso. He retired.
Mr. Chaffetz. Did he have to take on a different
responsibility under your tenure?
Mr. Moure-Eraso. Yes. He was transferred to a position of
senior advisor to the chairperson.
Mr. Chaffetz. Do you consider that a promotion or a
demotion?
Mr. Moure-Eraso. It was a lateral change, I would consider
it.
Mr. Chaffetz. Why did you make that lateral change?
Mr. Moure-Eraso. I would be very glad to discuss this with
you in a private manner.
Mr. Chaffetz. No, we are going to do this in the public. We
are not going to issue memos before we have--we are going to do
this in public.
Mr. Moure-Eraso. The agreement that we have with the
counsel for Mr. Warner is that I am not to discuss the issues
of his settlement, and my own counsel tells me that I would be
very glad to discuss all the details of his case, but not in
public. I want to protect the privacy of Mr. Warner.
Mr. Chaffetz. You suggest in your testimony that you are
not aware of anybody who may have lost their job, grade, or
pay, anything like that, and yet this case I would like to
specifically know more about, and we will continue to pursue
that.
Mr. Sullivan, are you familiar with the situation with Mr.
Warner?
Mr. Sullivan. Yes, sir, I am.
Mr. Chaffetz. How would you characterize it?
Mr. Sullivan. Mr. Warner made a complaint to the Inspector
General's office and we investigated it, and part of his
complaints are still part of our investigation. And as Mr.
Elkins testified, we cannot resolve Mr. Warner's complaints
until we get access to the documents we requested.
Mr. Chaffetz. When did you request those documents, and
have you received those documents?
Mr. Sullivan. No, sir. We requested them over a year ago
and they were the subject of the seven day letter Mr. Elkins
testified about.
Mr. Chaffetz. Why have you not produced the documents
requested?
Mr. Moure-Eraso. Well, under advice of counsel, they have--
--
Mr. Chaffetz. Whose counsel?
Mr. Moure-Eraso. The counsel of the Chemical Safety Board
that we hired. Let me explain to you the situation. We have
been requested by the IG, by the inspector general, a number of
information, documents and information for this particular
case. We have provided thousands of emails from board members
to him. And there are 20 emails that is the agency
correspondence with an outside lawyer that is representing the
agency in this personnel matter, and under the advice of
counsel they are claiming that turning over those 20 emails
will compromise the attorney-client privilege of the agency and
potentially create future liabilities for the Federal
Government
Mr. Chaffetz. How much money do you spend on outside
counsel?
Mr. Moure-Eraso. On that outside counsel? I would have to
get back to you; I cannot tell you. I don't have the figure.
Mr. Chaffetz. And you will get that information to me by
when?
Mr. Moure-Eraso. Whenever I can.
Mr. Chaffetz. I know. I want a date.
Mr. Moure-Eraso. In a week?
Mr. Chaffetz. Fair enough.
My time has expired. I am going to continue with the second
round and further explore this, but in deference of time here
we will now recognize the gentleman from Arizona, Mr. Gosar,
for five minutes.
Mr. Gosar. Thank you very much, Mr. Chairman.
Dr. Eraso, did you agree with Ranking Member Cummings'
conversation with Ms. Rosenberg about how he hires people? He
always hires up, makes him look good, empowers people to make
decisions? Do you agree with that management philosophy?
Mr. Moure-Eraso. Yes, I do.
Mr. Gosar. Well, I find it odd, because you have had a
number of board members and employees come forward that are
marginalized when they disagree with you and senior staff. How
do you think that affects the work ethic in that board?
Mr. Moure-Eraso. I disagree with staff members have been
marginalized.
Mr. Gosar. I have been on a number of boards that this has
occurred, that we have had senior staff trying to marginalize
board members, and, to be honest with you, in three for three
cases it has failed; it got them booted, by the way, senior
staff. You know, when everybody else is wrong and there is one
person that is constantly the part of the problem, don't you
think that person is the problem?
Mr. Moure-Eraso. It might be, yes.
Mr. Gosar. If you were sitting outside this room, watching
this conversation, I keep hearing that there are constant
employees and board members that constantly have the same
criticism of senior staff and you, the chairman. Wouldn't you
start to be retrospective and introspective about how you do
your job?
Mr. Moure-Eraso. Yes. I mean, I don't claim that the
operations of the board are perfect. We do have problems, we do
have issues that require study and remedy, and we are engaged
in trying to improve our working environment. I am not claiming
that the situation on the board is absolutely perfect. We have
problems and we are addressing them.
Mr. Gosar. So when you address those problems, do you
address them from your viewpoint or do you take a retrospective
aspect and ask the opinions of others, particularly at
different levels?
Mr. Moure-Eraso. I absolutely ask for the opinions of
others. As a matter of fact, we organized a committee that is
freely chosen among the staff, they chose themselves, that is
called the Work Improvement Committee. As I said, a management
consultant was assigned to them to diagnose the problems that
we have on agency communications and management, and to propose
solutions to deal with the situation.
Mr. Gosar. Well, a good start is humility from a chairman
or senior staff. I mean, humility is something phenomenal. You
made mention that you are human. Did you actively engage, from
your chairmanship, with staff and with board members trying to
solicit solutions from their standpoint and how you could
better that?
Mr. Moure-Eraso. Absolutely we have. I mean, at this
moment, that is the process that is taking place.
Mr. Gosar. Did you actively listen? I mean, I am a dentist
by trade, by profession, so I can start pulling teeth without
talking to the patient. I could probably get the right tooth
right, but I could streamline the process if I ask what hurts,
how can I help you, and start a fundamental diagnosis. It is
called active listening. Do you entertain that?
Mr. Moure-Eraso. Absolutely. As a matter of fact, we did
with the help of a mediator. I met separate with the board, we
called it like a marriage counselor, to try to help us to find
ways of improving our communication and our way of working. We
have a couple of meetings to that and we still have this person
engaged, as well as separately with the staff with this Work
Improvement Committee in which we basically listen how did they
diagnose what are the problems and try to----
Mr. Gosar. I am short on time here. Looking at all the
questions that both sides of the aisle have actually
entertained with you and the conversation I am having with you,
do you think you are kind of the problem here?
Mr. Moure-Eraso. I think that we have problems in the
agency and I think we are working on them.
Mr. Gosar. I know we. It starts with I.
Mr. Moure-Eraso. Well, I am not perfect. I am not claiming
that I am perfect. I am basically fulfilling my
responsibilities the best I can and I think----
Mr. Gosar. Well, it seems like you are not, because you
have an inspector general that--seven day letters are kind of
an unusual aspect. I mean, you get that point, right?
Mr. Moure-Eraso. Yes.
Mr. Gosar. Seven day letters are not the usual thing here.
Mr. Moure-Eraso. I would like to note that that seven day
letter doesn't have anything to do with the mission of the
agency, an obscure legal point that is being discussed that IG
and the lawyers could deal with.
Mr. Gosar. Well, it is part of your performance, sir. I
mean, you are the chairman and you have oversight of not only
the board, but of staff to comply with the rule of law. Are you
above the law?
Mr. Moure-Eraso. Absolutely not. And I am doing my best
to----
Mr. Gosar. Then why don't you comply?
Mr. Moure-Eraso. I am following the advice of counsel that
is trying to resolve this problem in the best interest of the
agency and the Federal Government.
Mr. Gosar. You also have the due diligence to understand
the law. Maybe you are getting very bad legal advice. I mean,
it goes about in Washington, DC. We have a lot of problems with
legal advice.
I will yield back. Thank you, Mr. Chairman.
Mr. Chaffetz. I thank the gentleman from Arizona.
I now recognize the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman. I hope we
can all agree that the Chemical Safety Board plays a very
important role in investigating chemical accidents and helping
to prevent similar accidents from harming workers, the public,
and the environment; and this discussion certainly should cause
all of us to be concerned as to whether this is being done to
the maximum extent possible under the circumstances.
I understand that in order to accomplish this important
mission the Chemical Safety Board relies on the hard work and
dedication of a small staff of just over 40 personnel,
including engineers, industry safety experts, and other
specialists. I am, therefore, very concerned to hear reports
that the Chemical Safety Board has experienced some departures
of its investigation staff reportedly over the last couple
years. For instance, Board Member Mark Griffin, who could not
be here with us today, states in his written remarks that ``In
the last three and a half years, many experiences investigators
have left the agency.''
Dr. Rosenberg, recognizing that you were a board member for
nearly one and a half years, did you also observe that
experienced investigators were leaving the agency?
Ms. Rosenberg. One just left three days ago. But before
then I wasn't there when the exodus was happening.
Mr. Cummings. All right. Were you finished?
Ms. Rosenberg. But I just know that a senior investigator
left three days ago.
Mr. Cummings. The staff report released by the committee
majority states that, ``The attrition at CSB began in 2011,
shortly after Chair Moure-Eraso took over as chairman.'' I want
to explore this statement because I understand that this
committee heard from former investigators that turnover was a
challenge even before Dr. Moure-Eraso became chairman in 2012.
Inspector General Elkins, your agency looked into the issue
of staff retention at the Chemical Safety Board and issued a
report in July 2013, is that correct?
Mr. Elkins. Yes, sir, that is correct.
Mr. Cummings. In fact, your report found that the
investigator turnover rate was 19 percent in fiscal year 2008
and 20 percent in fiscal year 2009, is that correct?
Mr. Elkins. That is also correct, sir.
Mr. Cummings. Well, let me ask you this, Mr. Elkins. Does
that seem high or average? Do you have any idea?
Mr. Elkins. No, sir, I really don't have any idea. I can
tell you that over the five year period that we looked at, the
average turnover rate was 15 percent.
Mr. Cummings. Okay.
Chairman Moure-Eraso, regardless of whether it preceded you
or not, if the turnover is still a challenge, it should be
addressed. In the July 2013 report, Inspector General Elkins
recommended that the Chemical Safety Board ``develop and
implement a succession or retention policy to help with any
future effects of the turnover rate on CSB's mission.'' Mr.
Chairman, have you implemented this recommendation?
Mr. Moure-Eraso. Yes, Mr. Cummings, we have programs to
educate employees, especially investigators, when they are
coming into the agency. We assign senior investigators to work
with junior investigators so that they can understand and can
work together. We have programs of training in which we bring
people from the outside to work with our staff, and we have
open lines of communication between the head investigators and
the investigators when they start doing their work. So we have
addressed that.
I also would like to add that we disagree with the figures
of attrition of the IG, and in our report, when we respond to
that report that you are reading, we have a different number
and rate of attrition that is comparable to any rate of
attrition of any other Government agency.
Mr. Cummings. Do you have any comment on that, Mr. Elkins?
Mr. Elkins. Yes, sir, I do. The work that we do is done
under strict standards. We take a look at the facts, we take a
look at the data. We don't try to rush to judgment. The facts
that we have support the data that I presented to you, so I
disagree with the chair's assertions.
Mr. Cummings. Just one last question. Mr. Chairman, Board
Member Griffin recommends in his written testimony that the
board ``develop a long-term hiring plan.'' Do you intend to
follow this recommendation? If not, why not?
Mr. Moure-Eraso. Mr. Cummings, we are waiting for the work
of our management consultant in all these issues. This is one
of the issues that we are considering, is how to project for
the future and how to have long-term solutions to problems that
have been identified during the years.
Mr. Cummings. All right, thank you very much.
Mr. Chaffetz. Thank you.
We will now recognize Chairman Issa.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Elkins, you have a little gray hair.
Mr. Elkins. Yes, sir, I do.
Mr. Issa. This is the only time you have pulled a seven day
rip cord?
Mr. Elkins. In my tenure, yes, sir.
Mr. Issa. So have you ever been stymied like this in an
investigation, stonewalled in the way that you have been
stonewalled here before?
Mr. Elkins. No, sir, I can't say that I have. You know, we
have instances in the past where we have run into some
obstacles, but we have been able to dialogue and work through
those obstacles short of issuing a seven day letter. But this
is the first time that we have been stonewalled to the point
where this was our only option.
Mr. Issa. Now, the use of words like stonewall very
typically indicate that, in your opinion, these are not just or
valid objections or withholdings, is that correct?
Mr. Elkins. That is absolutely correct.
Mr. Issa. Mr. Sullivan, you do a lot of investigations; you
are good at what you do. Have you seen anything like this
before?
Mr. Sullivan. No, sir. This is my first experience where
there has been an absolute complete refusal to provide
requested documents.
Mr. Issa. Ms. Lerner, you are from an office that the
entire public is always clamoring about special this, special
that. I recently have been asking for special prosecutors in a
number of areas and so on. But you are a sustaining
organization that does these kinds of investigations, rarely on
Government, if you look at the size of Government. Have you
ever seen anything quite like this before?
Ms. Lerner. It is very rare for an agency to assert
attorney-client privilege to protect documents from the Office
of Special Counsel, another Federal agency. And for context I
can tell you that it is also very rare for OSC to have to
subpoena a subject official in order to secure testimony. In
the three years that I have been head of the Office of Special
Counsel, this is the first time.
Mr. Issa. Well, let me follow up on that a little bit. You
are an attorney. You are very familiar with privilege logs. Is
there anything in your experience that can be so privileged as
to not have a privilege log?
Ms. Lerner. Not that I am aware of. I have never heard of
not getting a privilege log.
Mr. Issa. So the claim of privilege falls completely apart
if you are not willing to cite, document-by-document or at
least catalog-by-catalog, what the privilege is, is that
correct?
Ms. Lerner. In private litigation a court would never allow
an assertion of attorney-client privilege without a privilege
log, and it is very important for agencies like mine to get
that information. If an agency can assert attorney-client
privilege to protect the basis, for example, of removing
someone, we are not able to get a full picture and determine if
there was animus for whistleblowing, what the true factors
really were for taking an action against an employee. If we ask
why a decision was made and the answer is I can't tell you
because I asked my lawyer or outside counsel about it, then
that is just not very helpful to us.
Mr. Issa. Now, the agency employs outside counsel even
though they have an in-house counsel, is that correct?
Ms. Lerner. I am aware that they have hired outside
counsel.
Mr. Issa. And in-house counsel does not have an
expectation, normally, of attorney-privilege, isn't that; they
are Government workers working for a Government entity and they
don't normally have attorney-client privilege from the
Government. I just want to say that rather confusing thing to
hopefully get a yes.
Ms. Lerner. Yes. I will just also add that it does
occasionally happen, and we have actually, as an agency,
provided language to the Senate Governmental Affairs Committee
on this very specific issue. We thought it was necessary to
clarify the Office of Special Counsel's right to receive
information because it really does impact our ability to
conduct impartial investigations. And this case was sort of the
impetus for asking for that language.
Mr. Issa. Now, from my time in the outside world in both
civil and criminal cases, when the privilege is claimed, an in
camera review is often the case; in other words, the judge
shall decide whether or not the privilege claimed is
appropriate, is that right?
Ms. Lerner. Yes, that is right.
Mr. Issa. Where do you go to get that kind of justice in
this case?
Ms. Lerner. Well, it is tough as an administrative agency.
Technically, I suppose we could go to the Department of Justice
to ask them to enforce a subpoena for information for us, but
it is rare, and it is my approach to try and resolve things
informally and to find a way to resolve matters like this
without having to go to those extremes.
Mr. Issa. I just have two quick last questions, Mr.
Chairman.
What is the first date in which you believe that this was
asserted? In other words, how long have you been trying to
resolve this with the chairman?
Ms. Lerner. I am sorry, that was addressed to me?
Mr. Issa. Yes. It can also be addressed to Mr. Elkins, too.
Ms. Lerner. I don't know the exact amount of time. I think
as my testimony mentioned, we have been trying for a long time
to get these documents. We still haven't gotten either a
privilege log or the documents, and we don't know what we don't
have.
Mr. Issa. Right. And I guess I will ask it this way. Any
time you go more than a few weeks in negotiations, as Mr.
Elkins said earlier, you have stonewalling; you are not really
progressing, you simply have a party that is intransigent and
isn't going to provide that which they are ordinarily supposed
to do in their role on behalf of the taxpayers.
Ms. Lerner. I would generally agree with what you just
said.
Mr. Issa. And you have reached that point, haven't you?
Ms. Lerner. Pretty much.
Mr. Issa. Mr. Elkins, you have reached that point?
Mr. Elkins. Absolutely.
Ms. Lerner. My counsel has just reminded me that this isn't
the only subpoena that we have issued, but it is certainly one
of only maybe a couple inside Special Counsel.
Mr. Issa. Dr. Rosenberg, I know you are no longer there,
but are these the kinds of documents that you would routinely
be allowed to see if you asked to see them?
Dr. Rosenberg. We didn't even know this was happening until
we learned about it in the press, so, no, I am sure----
Mr. Issa. So the board wasn't consulted?
Dr. Rosenberg. About what to do.
Mr. Issa. Right. And the board would not have been normally
provided with documents that allow you to understand the
legitimacy of the action.
Dr. Rosenberg. We were marginalized from the whole affair,
and I don't know what would have happened had we asked to see
the documents.
Mr. Issa. Doctor, I am going to close very simply. I
believe there has been a strong case made in our investigation,
a strong case made here today, and I think Mr. Connolly made a
strong case in his discussion with you. You have failed in your
requirement to be a chief executive. You failed in your
requirement to be a board leader. You failed in your
requirement to hire people who faithfully do the job in the way
expected of an independent agency.
You have failed to deliver the kind of results in the way
of timely resolution of your basic charter, which is to do
these investigations and bring them to conclusion in a way in
which industry and the American people know that the changes,
so it doesn't happen again, are continuing. Six and a half
years to close something out, four years to close something
out, that is four years of vulnerability on whatever caused
these horrific incidents to occur.
Therefore, I personally will do something I don't do. I
don't do it with cabinet officers, I don't do it regularly. But
I really believe it is time you go, that you really need to ask
whether or not, in your last year, you can actually undo the
damage of your first five.
I thank the chairman and ranking member for their
indulgence and yield back.
Mr. Chaffetz. I thank the chairman.
I will now recognize myself for five minutes.
Mr. Moure-Eraso, how many people work for you?
Mr. Moure-Eraso. I think the agency right now has 40
people.
Mr. Chaffetz. And do you recall during that time how many
people have left or been asked to leave or departed?
Mr. Moure-Eraso. Nobody has been asked to leave. Some
people have transferred out and they have been replaced with
new hires.
Mr. Chaffetz. Did you ever have a conversation with Chris
Warner and ask him to leave?
Mr. Moure-Eraso. I did. I----
Mr. Chaffetz. You did or did not?
Mr. Moure-Eraso. One year after I started my chairmanship,
I had a discussion with him to that effect.
Mr. Chaffetz. So you just testified that you never asked
anybody to leave, and I asked you about Chris Warner and you
did ask him to leave.
Mr. Moure-Eraso. Yeah, and he said that he will not leave,
so I accepted it.
Mr. Chaffetz. Then why did you just tell me that you have
never asked anybody to leave?
Mr. Moure-Eraso. Well, I did have this conversation with
Mr. Warner at the beginning. We had a lot of differences on the
way that the agency should be run and we were not able to see
eye-to-eye on how he could be my general counsel, and I thought
I asked him to resign, and he said that he wasn't going to
resign, and that was the end of the matter.
Mr. Chaffetz. Why did you just tell me that you never asked
anybody to leave?
Mr. Moure-Eraso. Probably I misspoke. Yes, we had that
interchange with Mr. Warner.
Mr. Chaffetz. How convenient. We see a lot of that. So what
did you do with him? You changed his job, didn't you?
Mr. Moure-Eraso. No.
Mr. Chaffetz. You didn't change his job?
Mr. Moure-Eraso. I tried to do my best to see if we were
able to work together and----
Mr. Chaffetz. Did you or did you not change his job?
Mr. Moure-Eraso. Eventually I did, when we were
unsuccessful to work together.
Mr. Chaffetz. Well, why did you just tell me you didn't
change his job? I just asked you did you change his job, and
you said no. And then I asked you again and you now say yes.
Mr. Moure-Eraso. I transferred him from one position to
another, yes.
Mr. Chaffetz. What is that new position?
Mr. Moure-Eraso. I told you before----
Mr. Chaffetz. Was it a demotion?
Mr. Moure-Eraso. It wasn't, it was a lateral transfer.
Mr. Chaffetz. What was he doing, was he working on FOIA
requests?
Mr. Moure-Eraso. Not only that, he was an ethics officer,
which is a very important position in the agency.
Mr. Chaffetz. So he went from general counsel to working on
FOIA and ethics, and you think that is a lateral move?
Mr. Moure-Eraso. And any other issues of senior legal
interest that I could require from him.
Mr. Chaffetz. So anything at your discretion. But he is no
longer general counsel. How can you possibly justify that as a
lateral move?
Mr. Moure-Eraso. He didn't lose his title or his status----
Mr. Chaffetz. Yes he did lose----
Mr. Moure-Eraso.--or his salary.
Mr. Chaffetz. You are saying that he did not lose his
title? He was still called the general counsel?
Mr. Moure-Eraso. No. He started as SES.
Mr. Chaffetz. Sir, every time I have asked you a question,
you have changed your answer when I ask you a second time.
Mr. Moure-Eraso. What I am referring to is his character of
SES didn't change.
Mr. Chaffetz. His what?
Mr. Moure-Eraso. SES. He was a Senior Executive Service of
the Government. He remained as a Senior Executive Service of
the Government.
Mr. Chaffetz. But you did change his title. You did ask
somebody to leave. You did do all of those things.
Mr. Moure-Eraso. According to the U.S. Code, I have the
right to transfer people in the Senior Executive Service from
one position to another.
Mr. Chaffetz. Mr. Elkins, Mr. Sullivan, can you add or
illuminate anything to this discussion that we have had over
the last four minutes?
Mr. Sullivan. Mr. Warner has made numerous complaints about
his treatment and we have spoken to Mr. Warner many, many
times; and it is part of our ongoing investigation and we are
very hopeful to be able to get the documents that will shed a
lot more light on this issue.
Mr. Chaffetz. Why, again, are you holding back those
documents, Mr. Chairman? They have the law on their side, the
authority to see these documents. Why will you not share those
documents with them?
Mr. Moure-Eraso. I have shared thousands of documents.
Mr. Chaffetz. No, I want all of them. It is a percentage.
What percent----
Mr. Moure-Eraso. The only ones that we are not sharing is
the ones dealing with this attorney-client privilege that have
been mentioned by my----
Mr. Chaffetz. Because you went and spent taxpayer money to
get an outside counsel. You already had inside counsel; you
didn't have to use that. This is something we will bring you
back up here again if we need to. The chairman has already said
if he has to issue subpoenas, we will do that. It is just
absolutely stunning to me, because every single time we ask you
a question we get a different answer. Do you think you have
done anything wrong?
Mr. Moure-Eraso. I regret that I did some things the way I
did. I don't think that I have done everything perfect.
Mr. Chaffetz. What would you do differently?
Mr. Moure-Eraso. Probably I would have tried to get my own
team from the very beginning and make it clear that it was not
possible to work with people that wanted, in my experience, to
make more difficult the functions of the board and to work to
accomplish the mission of the board.
Mr. Chaffetz. How many recommendations has the inspector
general given you?
Mr. Moure-Eraso. Probably hundreds.
Mr. Chaffetz. Hundreds?
Mr. Moure-Eraso. Yes.
Mr. Chaffetz. You have a department of 40 people, and under
your tenure they have given you hundreds of recommendations?
How many have you implemented?
Mr. Moure-Eraso. My counsel says that there are a few
that--I am sorry, I misspoke.
Mr. Chaffetz. And you lead this organization.
Mr. Moure-Eraso. Yes, I do.
Mr. Chaffetz. How many of them have you actually
implemented?
Mr. Moure-Eraso. We have responded to each one of them and
we have told the inspector general how we plan to, when we
agree with their recommendation, how we plan to act on them and
how----
Mr. Chaffetz. Okay, so how many do you agree with and how
many do you disagree with?
Mr. Moure-Eraso. I cannot give you a figure right now.
Mr. Chaffetz. Well, that is obvious.
Mr. Elkins, shed some light on the reality from your
perspective.
Mr. Elkins. Yes, sir. I would be glad to. During the
administration of Dr. Moure-Eraso, we have issued 19
recommendations. My records show that 11 are open, 4 remain
unresolved, so what we have is 15 out of 19 with no corrective
actions being taken. Not only that, but OMB has issued a 50
guidance in terms of what happens when you cannot reach
agreement; it goes to what is called audit resolution. There is
no audit resolution process within the CSB, so, therefore, when
we get to a point of impasse, with CSB there is no where to go.
Mr. Chaffetz. Why is there no audit resolution process,
chairman?
Mr. Moure-Eraso. I don't know the answer to that question.
Mr. Chaffetz. And you lead this organization.
Mr. Moure-Eraso. Yes, I do.
Mr. Chaffetz. Your inability to manage what is a relatively
small group of people to deal with--the amount of money and
time and expertise that the inspector general comes in and
offers should be viewed as a benefit; and yet you very
cavalierly have no idea how many they have done, you have no
plans to implement them, the majority of them you haven't
implemented, there is no resolution in order to solve those
problems. And if you are going to need Congress to come in and
legislate how you are going to do this, you are not going to
like the result.
Mr. Moure-Eraso. I would like to say that we have responded
to each and every one of the recommendations and we have agreed
with some and we have disagreed with others.
Mr. Chaffetz. In your budget request, what did you do with
the oversight function, did you zero it out?
Mr. Moure-Eraso. I have to review that. I cannot tell you
from the top of my head what did I do with some item in my
budget.
Mr. Chaffetz. Let's do this as we wrap up.
Dr. Gosar, do you have an additional set of questions?
Let's do this, let's recognize Dr. Gosar for five minutes.
Mr. Gosar. Thank you.
Dr. Rosenberg, with your background, you sat on a number of
boards, I take it?
Ms. Rosenberg. Actually not.
Mr. Gosar. Really?
Ms. Rosenberg. No.
Mr. Gosar. But have you sat on anything privately as well?
Ms. Rosenberg. No. I have actually just been an academic
and I have been to many conferences and am a member of the
IPHA, but I have never worked on a board before.
Mr. Gosar. How do you run your classroom? You go to
training where you gather with colleagues, right?
Ms. Rosenberg. Mm-hmm.
Mr. Gosar. And do you discuss new theories and technical
aspects?
Ms. Rosenberg. I have been a member of the faculty at my
department at Tufts for 16 years, and I will go back there in
September.
Mr. Gosar. So you have been aware of inner jurisdictional
aspects, working with multidiscipline aspects.
Ms. Rosenberg. Yes.
Mr. Gosar. Have you not?
Ms. Rosenberg. Yes.
Mr. Gosar. Let's take that comparison and compare it to
what you saw on this board. Mr. Cummings made a comment to
always hire up, empower people to be part of the solution
process, and one of the mission statements of this board is to
look at these chemical spills, right?
Ms. Rosenberg. Right.
Mr. Gosar. And there seems to be a problem of long and long
and long and long to just not resolving any of these things,
taking longer and longer. Would you agree?
Ms. Rosenberg. Yes.
Mr. Gosar. As a board member, were you made aware of all
the different things that were being presented to your safety
board to be reviewed?
Ms. Rosenberg. Yes.
Mr. Gosar. Was there a plan to orchestrate that?
Ms. Rosenberg. We were presented with investigations, but
we weren't presented with a plan to complete the investigation.
Mr. Gosar. It seems to me, in logical aspects here, I don't
think you have to sit on many boards to understand that when
you are given a jurisdiction, here is the task that we are at
and we are trying to accomplish these; and the plan should be
that we get a proper jurisdiction, but empowering people to be
part of that solution so that we can get through that. Would
that be agreement?
Ms. Rosenberg. Yes.
Mr. Gosar. So you come with a different set of skill sets.
Board members are all not clones, right?
Ms. Rosenberg. Right.
Mr. Gosar. Okay, so you would like to have that free flow.
You had made the comment the free flow of information, right?
And that is also a good free flow of information from staff,
right?
Ms. Rosenberg. Yes.
Mr. Gosar. Did you have conversations with staff that felt
that they were impugned or restricted in the free flow of
information?
Ms. Rosenberg. Yes.
Mr. Gosar. And did they fear retaliation?
Ms. Rosenberg. Yes. They were told, yes. Many staff members
said they felt very fearful about disagreeing with their
supervisors for fear of retaliation.
Mr. Gosar. So if we were to work out a plan to look at all
the resources that the board has, don't you think that could
expediate some of the resolution of some of these issues that
we have, the backlog? Do you think we could speed up the
backlog if we empowered people to be part of the solution and
they didn't fear retaliation?
Ms. Rosenberg. I think, yes, the return of trust is
necessary in order to rebuild the board, and part of that would
be respecting the board orders as outlined in the Moss opinion.
But also the culture of the place has to change, and that is a
more difficult thing to do.
Mr. Gosar. Well, but you serve the general public, right?
Ms. Rosenberg. Yes.
Mr. Gosar. I am a health professional, so you want to be on
top of these so you don't repeat a historical disaster, right?
Ms. Rosenberg. Right.
Mr. Gosar. So a normal person that is in leadership would
reprioritize, right?
Ms. Rosenberg. I just must add Dr. Moure-Eraso is
completely committed to worker safety and health, and actually
everyone in the agency is. So it is not about commitment to the
mission.
Mr. Gosar. No, no, no, no.
Ms. Rosenberg. It is about management styles that----
Mr. Gosar. Well, and that is what the point is. The
chairman has brought up over and over again some people are
good at leadership, some people are not. Some people can
acknowledge their weaknesses, some cannot. We seem to be having
this problem in this hearing today; somebody not looking at I
instead of we. It is I. I agree with the chairman, it is time
for the chairman to go. We have a service to the public to
expediate the claims, to uphold the rule of law, and to make
sure that we have an open dialogue so we don't repeat the
historical problems from the past, and I think that takes
multiple eyesights.
This isn't just focused just right here. I have been on a
number of boards, as I said earlier, where I was trying to be
marginalized. I didn't go away. So I am glad you are back here
speaking, okay, because that is how we make a difference. And I
think there were laws put in place for whistleblowers to come
forward and to have those protections, and those are serious
offenses when we do not protect whistleblowers, because we are
seeing that type of debilitating aspect not just in this board,
but throughout our justice system here. So I want to compliment
you for coming forward. And I would hope that those employees
would still stay with it. We need to make sure that the public
is protected and that there are solutions at the table. So
thank you very much for your willingness to come forward.
Thank you, I yield back.
Mr. Chaffetz. I thank the gentleman from Arizona. He has
true passion and caring for this, so I appreciate his being
here and participating with us.
Chairman, you said you disagree with the IG about the
turnover numbers. Could you share with us those numbers and why
you disagree with them? I am asking you as a follow-up, not
right here.
Mr. Moure-Eraso. Yes. I could provide you with a document
in response.
Mr. Chaffetz. When could you provide that?
Mr. Moure-Eraso. Tomorrow, if you want to. To give you an
idea of the situation, we disagree with Mr. Elkins' evaluation.
He counted as one of the persons part of the people we lost one
of our investigations that died on the job, and he considered
that that person has left the agency, as one of the persons
that has left the agency voluntarily, and we disagree with him
on that.
Mr. Chaffetz. Well, I want you to just articulate that out.
Take a week. I appreciate the quick response. If you could
provide to the committee, we would appreciate it.
Mr. Moure-Eraso. I would like to add that there is a
documentation. Mr. Elkins published his recommendations with
our responses one-to-one, and all the responses are there, and
I would be very glad to provide you with that document.
Mr. Chaffetz. That would be great. If you have additional
information, we would love to receive it.
I would like to go from my left to right, starting with
you, chairman. The question is what do you think is wrong and
what do we need to do to fix it. And I am going to ask each of
you to please comment on that.
Go ahead.
Mr. Moure-Eraso. I think that the principal problem with
the Chemical Safety Board is that we are a very small agency
that is given an incredible amount of work to do. We have
really very little resources for the mission that has been
given to us; we have a very small staff for the mission. But in
spite of that we have produced top-notch, landmark issues in
our reports and our recommendations that we have done to the
chemical industry.
I do recognize that our operation is not perfect and that
we are having some problems of management in the agency, and I
read very carefully the recommendations of Congressman Waxman
that has looked at the situation and has made some specific
recommendations to us, and we are working on those
recommendations to improve the situation on the board.
Mr. Chaffetz. Mr. Elkins.
Mr. Elkins. Yes, thank you. My observation is this: in our
direct dealings with this seven day letter and the issues
underlying that, the message that comes across is that the
CSB's leadership is above the law. They do not feel that they
have to comply, in my particular case, with the IG Act. To
allow that to go on takes the IG Act and turns it on its head.
To allow an agency to decide, well, we will comply with this
piece, but we won't comply with that piece totally undermines
the IG Act. That, obviously, cannot stand.
Also what we have here is they seem to be doing this as a
rules on the fly sort of method. You know, they kind of make
things up. It is attorney-client privilege today; it is
something else tomorrow. That just cannot stand.
So those are my observations.
Mr. Chaffetz. Thank you.
Mr. Sullivan?
Mr. Sullivan. Yes, Mr. Chairman. The overriding feedback we
have received is fear from the employees; fear of what is going
on in the agency, concern. And from my perspective of my
investigators, we have been stymied, we have been stonewalled,
we have not received the documents we need. We can't rush to
judgment. Everyone is considered innocent unless and until
proven guilty, and these documents that we are requesting we
absolutely have to be able to analyze them and examine them
ourselves, because they will give us the way ahead.
Mr. Chaffetz. Thank you.
Ms. Lerner?
Ms. Lerner. The Office of Special Counsel encourages all
agencies to send a message from the very top about embracing
whistleblowers. Let me give you an example of one agency that
is doing what needs to be done. Acting Secretary Gibson at the
VA, in response to our letting him know about the high number
of retaliation complaints that we were getting from VA
employees, he sent a letter to all of the workforce, all VA
employees, making clear that whistleblowers are valued, that
they are important for the VA to find out what the problems
are, and that retaliation against whistleblowers will not be
tolerated. That was sent from the head of the department to
every employee at the VA. That is a model response to
complaints of retaliation.
The Whistleblower Protection Act requires agencies to
educate its employees about their rights to disclose
information about waste, fraud, and abuse, or health or safety
issues; they are supposed to let employees know that they can
come to the Office of Special Counsel, they can go to the IG,
they can come to Congress without any fear of retaliation.
If I were going to counsel anyone about how to improve an
agency, it would be to take the steps that are outlined under
the Whistleblower Protection Enhancement Act. Also my agency
has a certification program that agencies can follow; it is a
very simple program that includes informing employees about
their rights and taking very simple steps like putting a link
to our agency on their website. So that would be my advice.
Mr. Chaffetz. Thank you.
Dr. Rosenberg?
Ms. Rosenberg. I have a number of things. I so appreciated
Mr. Waxman's efforts and the efforts of his wonderful staff to
give us recommendations on how to improve the agency. I think
his recommendations are very good, but they don't go far
enough. They mostly recommended trying to establish a more
collegial environment and to keep board members in the loop.
But I think that needs to be codified so that board members
can't be marginalized.
I think we need a way to resolve professional disputes. We
need the chair to recognize the authority of the board by
recognizing board orders. We need public business meetings to
be accountable to the public, deliberative Sunshine Act
meetings. We can't have the chair have the ability to calendar
or table a matter of importance to put a matter that he doesn't
feel like dealing with on the table indefinitely. That is a
legislative change that we need because it produces some
autocratic behavior.
And I think the culture of the agency needs to be changed.
I think the agency needs to be rebuilt. I think senior
leadership needs either retraining or I am going to let you
decide what needs to be done. And I think that the agency needs
to heal and that restoring trust memo that was released to the
press three days ago shows that--I don't think there is a
sincere interest in doing that.
Mr. Chaffetz. Well, thank you. I appreciate it. Dr.
Rosenberg, thank you for your service. I know that that service
was a bit sour, but for whatever reason your participation
here, your willingness to speak publicly about this is very
much appreciated; it is part of solving the problem. I
frequently say what differentiates the United States of America
from most countries is we are self-critical, and you do that in
the spirit of making things better. So I appreciate your
willingness. I know it is not necessarily the most pleasant
thing to do, but it is part of the process to fix what is
clearly wrong and going the wrong direction.
We will continue to pursue this. I appreciate the tenacity
of Chairman Issa on this and Mr. Cummings to get to the bottom
of this. This is not the end of this; there will be much more
to come, and it is unfortunate.
I think to the Obama Administration I would suggest there
is a way to solve this; if they would show some leadership and
get their fingernails dirty and get in the middle of what is
clearly a management problem. I think several people have cited
that most of that management problem resides in one particular
situation.
To the men and women who are serving, they serve their
Nation, they have families, they have loved ones. I am sure
they are all patriotic. They do important work that is critical
to our Country. Bear with us. Hang in there. Things may be
difficult, but I hope this is a sign that things will be rooted
out, truth will surface; maybe the hard way, but truth is going
to surface and we will help solve this problem. I think we can
do it in conjunction with the White House if the White House
will show some leadership, too, on this issue. But the Congress
will continue to pursue this. But we could dismiss this sooner,
rather than later, if we do it hand-in-glove with the White
house.
Again, to those men and women who have gone through tough
things, they may have left that agency, they may be there now,
I thank them for their service to their Country, the tough work
that they do. We want to get to the truth and we want to make
it right.
With that, this committee stands adjourned.
[Whereupon, at 12:20 p.m., the committee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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