Chemical Safety Board Down to Two Members, Still at Odds

This story was updated for clarification July 1, with new information provided by Ray Porfiri.

With the Senate out of town and no chance for quick confirmation of a chairman, the Chemical Safety Board is ending a drama-filled month of June with just two of its complement of five members, two key officials on administrative leave for alleged misconduct and one pending lawsuit.

Yet Interim Chairman Rick Engler managed—on June 24, the final day of board member Mark Griffon’s five-year term—to vote through an “urgent” new rule to improve transparency of the 40-employee agency that investigates industrial accidents and critiques regulations.

“Just like the public has a legal right to know about the chemicals in their communities, the public has a right to know about the governance of this agency and where our investigations stand,” he said, drawing a contrast between himself in his temporary leadership role and the practices of Chairman Rafael Moure-Eraso, who was fired by President Obama in March.

Specifically, the rules require the chairman to schedule at least four public meetings in Washington, D.C., each year; mandate public consideration within 90 days of any item proposed for the calendar but postponed by vote (the previous chairman had postponed such items indefinitely); require public business meetings to include a review of current investigations and action-plan progress; and allow all board members, not just the chairman, to add agenda items at public meetings.

Departing board member Griffon said the “reforms will promote the CSB’s active engagement with stakeholders, including communities, industry, labor, scientific organizations and environmental constituencies. Our action today responds to the appropriate chorus of calls for positive changes at the CSB,” changes demanded by lawmakers of both parties and an inspector general.

 “Just last week, the Senate Appropriations Committee sent the CSB an unmistakable message by cutting $300,000 from CSB’s fiscal 2016 budget of $11 million,” the agency said in a release.

During public comment, the transparency rules drew support from the American Chemistry Council, the United Steelworkers and the International Chemical Workers Council. But opposition came from the advocacy group Public Employees for Environmental Responsibility, which continues to attack Engler’s management practices.

In a press release the day of the rules vote, the nonprofit’s executive director, Jeff Ruch, disclosed that CSB Deputy General Counsel Ray Porfiri, who is subbing for General Counsel Richard Loeb during Loeb’s administrative leave, is suing his own agency.

Porfiri is seeking up to $300,000 in damages from his agency because of “discrimination” against him relating to injuries he suffered in an April 2011 accident while pruning a tree at his home, according to PEER. Porfiri argues those injuries should relieve him, as an attorney, of duties to travel to industrial accident sites.

PEER’s complaint is that Porfiri, as the agency’s new top legal officer, is now supervising the CSB attorney working with the Justice Department on his case, which is pending before a judge, a description of the chain of command that Porfiri disputes. That official, Government Executive has learned, is CSB Assistant General Counsel Michele Bouziane.

According to PEER, the suit currently faces a government motion to dismiss, but Porfiri is pressing for settlement now, before the motion is decided. “If the motion to dismiss is granted, the settlement value of the suit would be greatly decreased, if not completely negated,” the group said. Engler, it adds, now claims authority to order payment to Porfiri without outside review.

Engler did not respond by publication time to requests for comment. But he told the Washington Post that that there is a “firewall” between Porfiri as plaintiff and Porfiri as defendant, meaning that other attorneys will handle his lawsuit against the board, the Post wrote.

Addressing the uncertainty of when a new chairman will be confirmed, Engler in his press release said, “We have an obligation to our oaths of office and the American people to act. It took two years for Member Ehrlich and me to be confirmed. Member Griffon and I will not shut down CSB in the meantime. If these new rules need further improvement, they can be updated in the future.”

Clarification: In response to this article, Ray Porfiri told Government Executive he disputes PEER’s statement that he supervises Michele Bouziane. He said he does not supervise anyone at CSB, and he “has always been insulated from my own case.” CSB, he added, is represented by the Justice Department for purposes of his case.