Darrell Issa Has a New Target”“and Democrats Are Joining Him

Chairman of the House Oversight and Government Reform Committee Rep Darrell Issa, R-Calif., and Ranking Member Elijah Cummings, D-M.D.
National Journal
Jason Plautz
June 19, 2014, 9:29 a.m.

Law­makers want the head of the fed­er­al gov­ern­ment’s chem­ic­al-ac­ci­dent in­vest­ig­a­tion unit to resign, say­ing he is over­see­ing a broken board where mis­man­age­ment has cre­ated a “tox­ic” work en­vir­on­ment.

A House Over­sight Com­mit­tee re­port al­leges the Chem­ic­al Safety and Haz­ard In­vest­ig­a­tion Board is mired in a ma­na­geri­al mess, with prob­lems in­clud­ing everything from re­tali­ation against whistle-blowers to re­pres­sion of pub­lic de­bate to ob­struc­tion of out­side in­vest­ig­a­tions. The dys­func­tion, the re­port changes, has forced out in­vest­ig­at­ors and has cre­ated an at­mo­sphere that makes it im­possible for the board to ful­fill its mis­sion.

The is­sues promp­ted Over­sight Com­mit­tee Chair­man Dar­rell Issa and oth­er mem­bers, in­clud­ing Demo­crats, to sug­gest that CSB Chair­man Ra­fael Moure-Era­so step down be­fore his term ex­pires.

“You really need to ask wheth­er or not in your last year, you can really undo the dam­age of your first five,” Issa said.

Speak­ing after the hear­ing, Moure-Era­so de­clined to com­ment on the resig­na­tion calls.

One mem­ber of the already short­han­ded Chem­ic­al Safety Board stepped down after just 17 months of her five-year term. In testi­mony be­fore the com­mit­tee, Beth Rosen­berg de­scribed an at­mo­sphere where staff was dis­cour­aged from talk­ing to board mem­bers and there was little room for de­bate or dis­cus­sion that could foster study of chem­ic­al dis­asters.

“Those whose opin­ions differed from those of seni­or lead­er­ship or the chair are mar­gin­al­ized and vil­i­fied,” Rosen­berg said. “At the CSB, dis­agree­ment is seen as dis­loy­alty. Cri­ti­cism is not wel­come and staff fear re­tali­ation.”

The CSB is an in­de­pend­ent agency cre­ated in 1998 to in­vest­ig­ate chem­ic­al dis­asters — everything from the plant ex­plo­sion in West, Texas, to the BP oil spill — and is­sue re­com­mend­a­tions to private com­pan­ies and gov­ern­ment agen­cies to pre­vent fu­ture in­cid­ents. But it’s been be­set by a long back­log. Between 2010 and 2012, only 11 of 31 planned in­vest­ig­a­tions were com­pleted, in­clud­ing only two in­vest­ig­a­tions be­ing com­pleted in 2012.

“We are a very small agency charged with a huge mis­sion of in­vest­ig­at­ing far more ac­ci­dents than we have the re­sources to tackle,” said Moure-Era­so, who has served since 2010. The board nor­mally has five mem­bers but presently has just two, al­though two more have been nom­in­ated by the White House.

But the Over­sight Com­mit­tee has charged that it was man­age­ment is­sues — many rooted with Moure-Era­so — that have led to staff mem­bers leav­ing, com­pound­ing the back­log. An 84-page re­port fea­tur­ing 10 in­ter­views with cur­rent and former staff mem­bers de­scribes “ser­i­ous man­age­ment de­fi­cien­cies.”

Par­tic­u­larly at is­sue was the treat­ment of the gen­er­al coun­sel’s of­fice — the re­port al­leges that Moure-Era­so hired coun­sel Richard Loeb without ap­prov­al of the rest of the board, then sought to push out then-coun­sel Chris Warner. Warner was later re­as­signed, a move that Moure-Era­so said was not a de­mo­tion.

The in­cid­ent cre­ated a “tense and con­flic­ted time” among the board, ac­cord­ing to man­aging dir­ect­or Daniel Horow­itz, and sev­er­al in­vest­ig­at­ors left.

The re­port also ac­cuses Moure-Era­so and Horow­itz of “mi­cro­man­aging” in­vest­ig­a­tions and for­cing in­vest­ig­at­ors out, stalling on­go­ing re­ports like a high-pro­file in­vest­ig­a­tion in­to a Te­soro re­finery fire in Wash­ing­ton state that took four years to com­plete.

It’s not the first time the board’s man­age­ment has come un­der fire. A Ju­ly 2013 IG re­port noted a lack of “defined per­form­ance in­dic­at­ors,” an in­vest­ig­at­or turnover rate of 15 per­cent, and out-of-date policies as con­trib­ut­ing to an in­vest­ig­at­ive back­log. In a let­ter to the Over­sight Com­mit­tee on Wed­nes­day, Cali­for­nia Demo­crat Henry Wax­man, who was in­volved in es­tab­lish­ing the board, de­scribed his work with the board to im­prove de­cision-mak­ing and plan­ning.

Moure-Era­so’s con­front­a­tion­al style has been on dis­play be­fore. In hear­ings after the West, Texas, ex­plo­sion, he fired off against the En­vir­on­ment­al Pro­tec­tion Agency, point­ing out “many large holes” in en­force­ment. And at one of his CSB’s meet­ings last Ju­ly, he ag­gress­ively over­ruled a re­quest by two oth­er board mem­bers to hold a plan­ning meet­ing on the in­vest­ig­a­tion back­log.

Rosen­berg re­layed the lat­ter in­cid­ent to the com­mit­tee, say­ing the ab­sence of a plan con­trib­uted to “low staff mor­ale” and that the meet­ing cre­ated a tense at­mo­sphere.

The board has since hired a con­sult­ant — Moure-Era­so com­pared it to a “mar­riage coun­selor” — to work on man­age­ment is­sues.

The case that launched the in­vest­ig­a­tion had to do with the al­leged leak of a whistle-blower’s iden­tity from CSB. That in­vest­ig­a­tion was re­ferred to the White House Of­fice of Spe­cial Coun­sel, but launched a second one re­lated to the use of per­son­al email ac­counts to con­duct CSB busi­ness. Sev­er­al emails from a private at­tor­ney hired by the board were with­held be­cause of at­tor­ney-cli­ent priv­ilege. Dur­ing the back-and-forth over the re­quest, ac­cus­a­tions flew of ob­struc­tion and the CSB even ac­cused the IG’s of­fice of ask­ing an em­ploy­ee to wear a wire to meet­ings with the spe­cial coun­sel.

In re­sponse, the IG took the rare step of send­ing a “Sev­en Day Let­ter” last Septem­ber to alert con­gres­sion­al com­mit­tees to the ob­struc­tion (the let­ters are rarely used; only one was sent between 2008 and 2011, ac­cord­ing to a Gov­ern­ment­al Ac­count­ab­il­ity Of­fice re­port). The in­vest­ig­a­tion is still open pending the re­lease of the doc­u­ments.

The at­tor­ney cli­ent-priv­ilege is­sue is a murky one (a Green­wire story from Oc­to­ber ex­amined it), but the re­quest won’t be go­ing away. Issa said he in­tends to is­sue sub­poen­as that mir­ror the re­quest against the IG. A fail­ure to com­ply with­in sev­en days, he said, would res­ult in the board mem­bers be­ing held in con­tempt of Con­gress.

And the com­mit­tee has al­leged that CSB mem­bers tried to block the in­vest­ig­a­tion, cit­ing memos that re­com­men­ded staff not re­spond to re­quests from Con­gress.

Rosen­berg re­called hav­ing dis­cus­sions with staff in the ladies room and out­side of the agency for fear of re­pris­al. It all adds up to an en­vir­on­ment that she said would make it dif­fi­cult for the board to carry out its work, which she called “unique and im­port­ant.”

“The agency is broken,” she said. “It needs to be re­built.”

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