Disputed Power Maneuver Divides Chemical Safety Board

The Chemical Safety Board, still struggling with vacancies as it seeks stability following the forced resignation of its chairman in March, divided sharply last Thursday over an unusual procedural move that empowered the interim chairman.

Board member Rick Engler, Government Executive has learned, on Friday sent the staff a note, saying the board had voted to designate him the “Board Member Delegated Interim Executive and Administrative Authority in accordance with CSB Board Order 003,” and that he looked forward to “working collegially with my fellow board members and staff.”

Engler, a union workplace safety specialist who was confirmed to the ordinarily five-member Chemical Safety Board last December, is among three current board members tasked with easing governance clashes and low morale that many blamed on mismanagement by ex-chairman Rafael Moure-Eraso.

The CSB is an independent technical investigative body that does for industrial accidents what the National Transportation Safety Board does for transportation disasters.

But critics, some from labor unions, say Engler’s special board vote to make himself acting chairman violated transparency rules and accords him too much power at a time when all await Senate confirmation of President Obama’s nomination for permanent CSB chairwoman, Vanessa Sutherland. Board member Mark Griffon’s five-year term also expires June 24.

Only two board members participated in Thursday’s vote, and it came in spite of an attempt by board member Manny Ehrlich to postpone it. Ehrlich, whose back ailment prevented his presence at the vote for acting chairman, on June 8 had sent the CSB associate general counsel a proposal for an interim sharing of power between him and Engler, saying the situation was unprecedented.

Ehrlich’s proposal attempted to “calendar” the vote, or delay it for a future public meeting. But sources familiar with the proceedings, who spoke on condition of anonymity, said board members Engler and Griffon, lacking a three-person quorum, conducted an “urgent” vote by email, and, rather than waiting for the required five days, ran it only briefly by the general counsel’s office before announcing results to staff.

The vote also removed a 180-day expiration date that was part of Board Order 003, meaning Engler’s appointment as acting chair now goes “in perpetuity” if the two remaining board members deadlock on any vote.

“What we have now is basically a governance takeover without public notice, and with truncated public comment and the absence of any quorum,” said Jeff Ruch, executive director of the nonprofit Public Employees for Environmental Responsibility, which represents public-sector workers involved in chemical workplaces. “It’s a dead-man's-hand situation with nonexistent chair authority,” Ruch told Government Executive, calling the newly empowered Engler a "one-man junta."

In a June 12 letter to the CSB associate counsel, Ruch’s group attacked a related formal rule the CSB published for comment in May on its reorganization and governance. “The timing of the proposed rule and the absence of a presidentially appointed chairperson for the CSB (although one has been nominated and has had a Senate hearing), as well as the imminent expiration of the term of one of the CSB members, all strongly suggest that this proposed rule is a last-minute ploy to further weaken, hinder or restrict the already very limited authorities of the CSB chair,” the letter said. “The mere fact that there is no chairperson at the board during the rulemaking process further suggests that this rule is not promulgated in good faith, as obviously there can be no consultation with the chair over a rule putatively affecting his or her authorities during a vacancy in that position.”

Ruch’s group sees much larger strategies at play. “We’re concerned that Engler may have an incentive to create an internal impasse to block confirmation of a chair,” he said, suggesting that Engler might be coordinating “as strange bedfellows” with Senate Environment and Public Works Committee Chairman Jim Inhofe, R-Okla., to tarnish the Sutherland nomination. 

Inhofe and former House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., who was instrumental in building pressure for the firing of Chairman Moure-Eraso, “have absolutely no interest in industrial safety,” Ruch asserted, saying the board’s recent efforts at toughening safety procedure reporting requirements are being hamstrung. “A lot of the criticism of the former chairman is completely overblown,” he added. “As events continue to unfold months after he left, it’s clear he was the casualty of the turmoil not the cause of it.” Ironically, Ruch said, “among the points of contention was him taking action on governance without public notice or transparency.”

The problems with Engler’s one-man authority could have been avoided, according to Ruch, if the White House had designated an interim chairman.

Engler, in an email response to Government Executive, said, “I look forward to Senate confirmation of President Obama's nominee for the chair of the board, Vanessa Sutherland, and other nominees so that the CSB can have a full complement of members as soon as possible."

A CSB business meeting scheduled for June 18 will allow an opportunity for further discussion and public comment on the Proposed Rule to amend 40 CFR 1600— Organization and Functions of the Chemical Safety and Hazard Investigation Board.

The complex dispute does not break down on party or ideological lines. Beth Rosenberg, who served 17 months as an Obama appointee on the Chemical Safety Board until May 2014, said Engler’s emergency vote “seems prudent.” The board “can vote to delegate the powers of the chairperson to a board member. In this case, Griffon and Engler voted to give Engler administrative authority, said Rosenberg, now a professor at the Tufts University Medical School. "Both of those board members are rightly concerned about leaving the agency without a chair when Griffon leaves June 24.”

Mark Farley, a Houston-based attorney with Katten Muchin Rosenman LLP who follows the Chemical Safety Board regularly, said the episode comes “at a watershed moment, when the board has been racked by poor relationships with Congress, internal strife among board members and poor staff morale at a pretty delicate time in its history.” The former chairman “faced significant bipartisan criticism” and alienated industry. The difficulty in achieving board consensus on important governance issues, Farley added, will be one of the first things that the new chairman, once confirmed, will have to confront.

Inquiries to the White House, Inhofe and Issa drew no responses by early Monday afternoon.