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Biden’s Chemical Safety Investigators Seek to Boost Reporting

Aug. 11, 2022, 2:15 PM

New leadership at the federal board probing chemical accidents is focusing efforts on releasing more reports and information as it tries to climb out of a bureaucratic hole from investigator shortages.

The renewed momentum comes as both the House and Senate’s proposed fiscal year 2023 appropriation bills call for boosting the budget of the US Chemical Safety and Hazard Investigation Board to $14.4 million, a $1 million increase over fiscal 2022.

“It’s a big deal for us to get that level of funding. It will enable us hire more staff, in particular more investigators, which we really need,” the board’s new acting chairman, Steve Owens, told Bloomberg Law.

Owens is an attorney and former chemical regulator with the Environmental Protection Agency during the Obama administration. Appointed to the board by President Joe Biden, he joined the CSB in February, and became acting chair July 22 following the resignation of Katherine Lemos, a Trump administration appointee.

Lemos’ departure left CSB oversight to two Biden administration appointees—Owens and Sylvia Johnson, formerly an occupational epidemiologist with United Auto Workers and most recently legislative advocate with the National Education Association. Both were appointed to five-year terms.

Staffing Shortages

Today, the CSB has 11 investigators; a few years ago there were more than 20 investigators with the agency, Owens said. A majority of those 11 investigators have been with the agency for less than three years. Overall, the board is down to 30 filled jobs, out of more than 45 approved positions.

The CSB during the Trump administration languished as the president’s proposed budgets called for shutting down the agency, and only one new board member was appointed—Lemos, who had experience in aviation safety issues.

Congress ignored Trump’s calls to phase out the CSB, and continued to fund the agency. However, the proposals to close the agency damaged the CSB, Owens said.

“There clearly was an issue and it had a negative impact on this agency in making it difficult to attract and hire staff,” said Owens. “Why would you go to an agency if you think that it might be defunded and have to close its doors?”

Changing Up Reports

The heart of the CSB’s mission is collecting information about chemical accidents, issuing reports on what caused the incident, and making recommendations to prevent similar mishaps. The board can’t issue citations or fines.

The CSB has only issued one final report in 2022, the July 29 findings on the Loy Lange Box Co. explosion in St. Louis, and hasn’t initiated any new major investigations since July 2021.

“We’ve got a goal of getting the next five [reports] out by the end of this calendar year and I think that is pretty realistic,” Owens said. The goal for 2023 is to issue 11 reports.

“We also want to be clear, some may move up, some may move down,” the acting chair cautioned.

Owens and board member Johnson expect some changes to how the board releases incident information and what information reports include.

“As we move through our reports, going forward one of the things we want to have as part of the reports is who is in that surrounding community,” Johnson said. The information would include details on the community’s racial mix and income levels.

“We are all pretty aware that many of these facilities are located in low-income, minority communities and that has its own set of issues because those are same communities that tend to have more adverse health outcomes,” she said.

Johnson also said she wants investigations to include insights from workers into plant operations, such as the facility’s safety culture.

In addition to final reports, Owens said, the CSB will resume the practice of issuing interim reports two to six months after an investigation begins that cover the facts of an incident to let the public know what investigators found.

Owens said issuing the interim reports had been standard practice for several years, but in recent years the agency stopped.

“The investigators were writing them, but they weren’t being approved for release,” Owens said.

Leadership Disputes, Open Seats

The board also has a shortage at the leadership level—only two of five Senate-confirmed board seats are filled today.

President Joe Biden has nominated two other board members—law professor Catherine J.K. Sandoval and Jennifer Sass, senior scientist at the nonprofit Natural Resources Defense Council. Sandoval is awaiting a committee confirmation hearing, while Sass’s appointment ran into Republican opposition and the full Senate has yet to vote on her nomination.

In the time since Owens and Johnson began their terms in February, the two have been rolling back some of Lemos’ policies.

Lemos in April 2021 had approved a revision to directive Board Order 28 that gave the chairman authority to hire and fire all CSB staff, prepare the annual budget, and approve board member travel.

On May 17, Owens and Johnson voted to reverse much of the April 2021 order. “It basically puts back to the board the authority it had historically, for 20 some odd years, in terms of being involved in personnel decisions, being involved in the budget, being involved in expenditures, and things of that nature,” he said

In turn, Lemos delayed enactment of the revised order, board documents show. The updated Board Order 28 took effect after Lemos resigned and her hold on the order no longer was in effect.

“We had no idea she was resigning. And since then, we’ve really had no interaction with her,” Owens said.

Bloomberg Law couldn’t reach Lemos for comment.

EPA Not an Option

Despite the CSB’s shortcomings, Owens believes the agency should remain independent, and not merged into the EPA, which sets most chemical use and exposure regulations.

“The CSB has a very unique mission, very important mission which is to do these investigations,” Owens said. “You can prepare the recommendations and the reports and let them speak for themselves and then work with the stakeholders and community to get those recommendations implemented.”

“I don’t think there is any other agency, certainly in the chemical space, that can do that including the EPA,” he said.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Genevieve Douglas at gdouglas@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com