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Understaffed Chemical Safety Board Ripe for Revamp as Probes Lag

March 15, 2021, 9:18 AM

The U.S. Chemical Safety Board is running on fumes. With 80% of its board seats vacant and more than a dozen open investigations, CSB staffers are being asked to take on management responsibilities while the agency is run by Trump administration holdover Katherine Lemos, a self-proclaimed quorum of one.

The Biden administration can change that, but it’s given scant indication it’ll do so any time soon.

The CSB investigates the causes of chemical disasters and issues recommendations to other federal agencies, companies, and the public to reduce the risk of future accidents. At least three times, former President Donald Trump proposed budgets calling for the agency’s elimination.

Addled by a lack of investigators, its backlog of 14 open cases dates back to 2016. The board has opened six of those probes since Lemos’ confirmation in March 2020. Her last fellow board member, Interim Chair Kristen Kulinowski, resigned just days after Lemos took control of the agency.

“The number of open investigations and working with lower levels of staffing is a concern,” said Beeta Lashkari, a former attorney-investigator for the CSB and an associate at Conn Maciel Carey LLP. “The backlog of cases is something to take seriously because it takes time to write reports and issue them.”

New investigations will keep coming, Lashkari said, so when older reports are left in limbo “generally, lessons from previous incidents aren’t being widely disseminated for the public’s use, some recommendations might become stale if they’re issued too far along,” and investigators won’t be able to share final lessons learned.

And the newest probe—that of a deadly nitrogen leak at a Gainesville, Ga., poultry plant on Jan. 28—gave rise to concern the agency was working in conjunction with immigration enforcement authorities.

Plans for 2021

During a March 5 public meeting of the CSB, the first this year, Lemos touted the agency’s 2020 accomplishments, which included closing out one of those investigations, and eight of its open safety recommendations, though more than 100 remain active.

She also said that administrative changes meant to improve the agency’s productivity would be in effect “very soon,” such as allowing staff to take on administrative activities assigned to the board, empowering them “to execute on business decisions.” The agency hired six investigators in 2020.

“It seems totally unreasonable to me that staff members would be expected to do board members’ jobs,” said Manny Ehrlich, a former safety board member who served for six years after being appointed by former President Barack Obama in 2014. “Whoever heard of the employees of a company sharing the responsibilities of the board?”

The reassignment of tasks could create conflicts of interest, Ehrlich said, particularly if investigators who are supposed to be impartial fact finders are asked to take on board duties. “When you don’t have enough staff to run the organization, it’s ludicrous to ask the staff to do the board’s job.”

Lemos told Bloomberg Law in September that the provisions of 40 CFR 1600.5(a)—which sets forth the agency’s quorum requirements—allow the CSB to continue its mission until there are more board members. Still, as the board operates with that quorum of one, it too is advocating for more members.

Biden has the opportunity to stack the panel with his appointees. He can do so without regard for political affiliation, Ehrlich said. Thus far, there’s no indication the White House is moving to do so. Each nominee would be subject to U.S. Senate confirmation.

“The CSB has not received any indications from the Biden administration about appointees,” agency spokeswoman Hillary Cohen said in an email on March 8. “The Chairman welcomes additional members to further the CSB’s work and mission. A full board contingency would help achieve the intent of a diverse group of board members from a variety of backgrounds with varying perspectives.”

The White House didn’t respond to several emailed requests for comment on the agency’s status, and whether the administration plans to fill any of its board vacancies.

Investigation Hiccups

CSB investigators arrived in Gainesville, Ga., on Jan. 29, one day after the nitrogen leak killed six people at the Foundation Food Group facility there.

The city of 42,000 just northeast of Atlanta is about 40% Latino. In a nod to that demographic reality, the company expressed its sorrow about the accident in a bilingual posting on its website, with a link to a page soliciting financial assistance for the families of the dead, in conjunction with organizations that included the Northeast Georgia Latino Chamber of Commerce.

At the same time, worker advocates say they heard reports of communication, and possibly cooperation, between the Department of Homeland Security’s Immigration and Customs Enforcement agency and CSB in the immediate aftermath of the incident.

A coalition of 55 groups acting under the umbrella of the Georgia Immigrants Alliance on Feb. 1 sent a letter to Lemos, state, and Foundation Foods officials, bearing the subject line “Foundation Food Workers Are Fearful of Retaliation Based on Immigration Status and their Cooperation with Federal Investigators.”

The groups called for assurance that neither DHS nor ICE carry out any enforcement activity during the nitrogen leak probe “against any Foundation Food workers, their families, or the immigrant communities in the region.”

They also have discouraged plant workers from cooperating with the agencies until the link between DHS and CSB is more clear, said Paul Glaze, spokesman for GA Familias Unidas. An immigrants alliance member, the group provides relief and mutual aid to poultry plant workers, according to its LinkedIn profile page.

The CSB’s rumored cooperation with ICE during the investigation highlights the potential challenges the agency faces without more board members.

If the agency in fact cooperated with ICE, it would present immense challenges to the CSB’s investigations and information-gathering efforts, Daniel Horowitz, a former Chemical Safety Board managing director, said in a phone interview.

“The top priority in a multiple fatality incident is finding out what happened, not immigration enforcement,” Horowitz said. That means “getting whatever information from employees that can explain what happened and providing whatever assurance is needed.”

The CSB’s Cohen said in an email that “many federal, state, and local agencies are on scene at accident sites and any DHS interactions would be routine in that nature.”

“Our deployment is in furtherance of safety to the community, workforce, and environment and to insinuate any CSB focus outside of our mission would not be rooted in fact,” Cohen said.

Horowitz said of his past experience with the CSB, “I don’t recall any incident where there was any coordination with ICE.” Typically, Homeland Security’s role would be limited to instances where there’s suspicion of sabotage or terrorism, “then the FBI or ATF could also become involved,” he said.

The DHS didn’t respond to emailed requests for comment on whether it, or ICE, questioned Foundation Food workers after the incident. The company didn’t respond to requests for comment.

Chemical Safety Experience

Lemos’ lack of experience in chemical safety also has watchers wary of how the agency will fare in the future, said Paula Dinerstein, an attorney for Public Employees for Environmental Responsibility. The nonprofit successfully sued the CSB to force it to implement a rule that collects information from firms after accidental chemical releases.

A U.S. district judge in Washington in February 2019 ordered the agency to begin rulemaking.

“We’re certainly concerned that there should be a full board, and we’re particularly concerned that ever since Lemos came in, their completion of investigations has gone down,” Dinerstein said, adding that since Lemos’ takeover, “we are steadily getting denied our fee waivers for FOIA requests and we’re told our inquiries aren’t in the public interest.”

“My guess is that all of this hasn’t come to the attention of the Biden administration,” Dinerstein said.

To contact the reporters on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com; Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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