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88–827 PDF 2014

WHISTLEBLOWER REPRISAL AND MANAGEMENT 

FAILURES AT THE U.S. CHEMICAL SAFETY BOARD 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JUNE 19, 2014 

Serial No. 113–120 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

Hearing held on June 19, 2014 ............................................................................... 1 

WITNESSES 

The Hon. Rafael Moure-Eraso, Chairman, U.S. Chemical Safety and Hazard 

Investigation Board 

Oral Statement ................................................................................................. 6 

Written Statement ............................................................................................ 8 

The Hon. Arthur A. Elkins, Jr., Inspector General, U.S. Environmental Protection Agency, Accompanied by Patrick Sullivan, Assistant Inspector General for Investigations, U.S. Environmental Protection Agency 

Oral Statement ................................................................................................. 12 

Written Statement ............................................................................................ 14 

The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of Special Counsel 

Oral Statement ................................................................................................. 21 

Written Statement ............................................................................................ 23 

The Hon. Beth Rosenberg, Former Board Member, U.S. Chemical Safety 

and Hazard Investigation Board 

Oral Statement ................................................................................................. 27 

Written Statement ............................................................................................ 29 

APPENDIX 

June 18, 2014, letter to Reps. Issa and Cummings from Rep. Waxman ............. 68 

Majority Staff Report ‘‘Whistleblower Reprisal and Management Failures at 

the U.S. Chemical Safety Board,’’ submitted by Chairman Issa ...................... 72 

Feb. 10, 2014, Memo to CSB Board Members Regarding Rebuilding Trust, 

submitted by Rep. Connolly ................................................................................ 156 

Answers to questions submitted for the record from USCSB .............................. 160 

(1) 

WHISTLEBLOWER REPRISAL AND MANAGEMENT FAILURES AT THE U.S. CHEMICAL 

SAFETY BOARD 

Thursday, June 19, 2014, 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 10:00 a.m., in Room 

2154, Rayburn House Office Building, Hon. Darrell E. Issa [chairman of the committee] presiding. 

Present: Representatives Issa, Mica, Turner, Jordan, Chaffetz, 

Walberg, Gosar, Farenthold, Woodall, Meadows, Cummings, 

Maloney, Tierney, Connolly, Speier, Kelly and Lujan Grisham. 

Staff Present: Melissa Beaumont, Majority Assistant Clerk; Will 

L. Boyington, Majority Deputy Press Secretary; Molly Boyl, Majority Deputy General Counsel and Parliamentarian; Ashley H. 

Callen, Majority Deputy Chief Counsel for Investigations; Sharon 

Casey, Majority Senior Assistant Clerk; Jessica L. Donlon, Majority 

Senior Counsel; Kate Dunbar, Majority Professional Staff Member; 

Adam P. Fromm, Majority Director of Member Services and Committee Operations; Ashok M. Pinto, Majority Chief Counsel, Investigations; Andy Rezendes, Counsel; Laura L. Rush, Majority Deputy Chief Clerk; Katy Summerlin, Majority Press Assistant; Sarah 

Vance, Majority Assistant Clerk; Krista Boyd, Minority Deputy Director of Legislation/Counsel; Jennifer Hoffman, Minority Communications Director; Peter Kenny, Minority Counsel; Chris Knauer, 

Minority Senior Investigator; Elisa LaNier, Minority Director of 

Operations; Juan McCullum, Minority Clerk; and Dave Rapallo, 

Minority Staff Director. 

Chairman ISSA. The committee will come to order. 

The Oversight Committee exists to secure two fundamental principles: first, Americans have a right to know that the money Washington takes from them is well spent and, second, Americans deserve an efficient, effective Government that works for them. Our 

duty on the Oversight and Government Reform Committee is to 

protect these rights. Our solemn responsibility is to hold Government accountable to taxpayers, because taxpayers have a right to 

know what they get from their Government. It is our job to work 

tirelessly in partnership with citizen watchdogs to deliver the facts 

to the American people and bring genuine reform to the Federal 

bureaucracy. This is our mission statement. 

Without objection, the chair is authorized to declare recesses in 

the committee’s hearing at any time. 

2 

Today we are here to perform one of the committee’s most basic 

core functions: to identify and root out waste and mismanagement 

in the Federal bureaucracy. Usually, when we talk about waste 

and mismanagement, we talk in terms of dollars and cents. Today 

we are going to discuss waste and mismanagement at the U.S. 

Chemical Safety and Hazard Investigation Board, or the CSB, in 

terms of public safety and lives that can be lost. 

CSB’s mission is to independently investigate significant chemical incidents and hazards, and effectively advocate for implementation that results in recommendations to protect workers and the 

public and the environment. 

Over the course of an eight month investigation, the committee 

has identified significant problems at the CSB that undermine its 

public safety mission. The narrative that emerged from thousands 

of pages of documents and interview transcriptions and the like are 

fairly simple: the chairman’s management style created a hostile 

work environment which caused experienced career investigators 

and at least one of his fellow board members to leave the agency. 

CSB’s investigations of significant chemical accidents took far 

longer than they should have. The board failed to make recommendations that might have prevented future accidents in a 

timely way. And that is why the CSB is under scrutiny by this 

committee and others, including former chairman of this committee, Henry Hyde. 

The Chemical Safety Board exists to investigate industrial chemical accidents, uncover their causes, and provide safety recommendations based upon their investigations. Congress expects 

the agency to issue its investigations and reports in a timely manner. In fact, Senate recommended that these reports be issued 

within six months of any accident. Unfortunately, under the direction of the current CSB chairman, Rafael Moure-Eraso, the agency 

is failing to meet these requirements, it is failing to fulfill its mission, and that is why we are here today. 

On September 5th, 2013, the EPA inspector general sent a seven 

day letter to Congress regarding CSB’s refusal to cooperate with its 

investigation into whether one of the chairman’s closest advisors 

learned the identities of CSB employees who had filed whistleblower complaints with the Office of Inspector General and Special 

Counsel. 

I want to make it very clear here today. This committee would 

like to receive more seven-day notices than we do. But on the few 

that we receive, they are a 911 call to this committee and, as a result, we take them very seriously. 

Allegations in the seven day letter were very serious. The letter 

signaled a severe problem with an agency and prompted us to 

begin our own investigation. The committee’s investigation of CSB 

revealed an agency in crisis, unable to properly function and serve 

its mission because of poor leadership and mismanagement. Our 

investigation found the CSB chairman improperly exercised his responsibility, intimidates staff, and undermines the well established 

precedent that designates the board, not the chairman himself, as 

the agency’s ultimate authority. 

Current and former CSB employees informed the committee that 

the chairman’s heavy-handed management practices, blatant disVerDate Aug 31 2005 09:37 Jul 31, 2014 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\88827.TXT APRIL
3 

regard for authority and protocol, and the erosion of a collegial 

work environment have devastated the CSB in much the same way 

as we saw at the Nuclear Regulatory Commission a few years ago. 

The facts bear out the allegations we heard from current and 

former CSB employees. There is an extraordinarily high rate of attrition at CSB, investigations have languished for years, and several employees disclosed to us that they feared retaliation from 

agency management for cooperating with the committee’s investigation. 

Concerns about CSB’s problem have been bipartisan. For instance, after a CSB investigation of an explosion in Washington 

State that killed seven workers dragged on for four years, Congressman Rick Larsen and Senator Patty Murray were vocal in 

their criticism, and Congress agreed. With respect to the delay reported on the accident, Senator Murray wrote, I am extremely frustrated that after nearly four years the CSB has still failed to 

produce a final report. This delay is emblematic of poor leadership 

at CSB, which continues to do a disservice to workers, companies, 

and the economy. Without dramatically improved performance, 

substantial leadership changes at CSB will be necessary. 

I agree with the Senator. The final report was finally issued on 

May 1st, 2014, more than four years after the accident. Considering the importance of industrial workplace safety, the disorder at 

the CSB is too great for us to ignore. The goal of this hearing is 

to effectuate change and to allow a struggling agency in charge of 

public safety to regain that focus on public safety that both sides 

of the dais wants. 

The committee appreciates the witnesses appearing here today. 

I look forward to hearing their testimony, and I believe that the 

questions and answers will help the American people understand 

an agency in crisis. 

Before we hear from the ranking member, I want to remind our 

witnesses today that this committee will not tolerate any reprisals, 

any effort to block Federal employees or contractors from working 

cooperatively with the inspector general, the Office of Special Counsel, or Congress. And, in fact, I want to make it very clear to do 

so is a crime. 

I now recognize the ranking member for his opening statement. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I want to 

agree with you on what you just said. There must be maximum cooperation, and I join you in that statement. 

The Chemical Safety Board was created as part of the Clean Air 

Act amendments of 1990, and the agency’s mission is to investigate 

industrial chemical accidents, a very, very serious mission that 

goes to life and death. 

CSB is a small agency, but it conducts very important investigations. For example, in 2007, CSB produced a landmark report on 

the BP Texas City Refinery explosion that killed 15 workers and 

injured 180 people. 

In addition, just two weeks ago, CSB formally approved and publicly released a new report on the Deepwater Horizon explosion and 

well blowout, one of the most devastating environmental disasters 

in history. This new CSB report finds that the blowout preventer, 

a key piece of equipment that is supposed to prevent catastrophic 

4 

loss of oil, failed to seal the well because drill pipe buckled. CSB 

also identifies multiple deficiencies that demonstrate Transocean 

and BP did not treat or manage it as safety critical device. 

In addition, CSB concludes that this failure occurred for reasons 

the offshore drilling industry remains largely unaware of. CSB also 

identified significant limitations in the U.S. regulatory regime, 

leaving industry and the public vulnerable to another major accident. This report provides a more in-depth analysis than any previous investigation into serious issues related to the safety systems 

used by deepwater drilling operations and it deserves very close 

scrutiny. 

But, to date, no committee has held a hearing about the report 

or its findings to ensure that they are fully addressed so this does 

not happen again. It is sad today the committee is holding a hearing about the management challenges at the CSB. Let me make 

clear that I believe this is a worthy topic for the committee to investigate, but it is a shame that we did not spend the same amount 

of time and energy on the substance of the board’s work. 

As part of its investigation, the committee interviewed nine current and former CSB employees, and received briefings from the 

agency’s EPA’s Office of Inspector General and the Office of Special 

Counsel. As a result, it is clear there are serious management problems that need to be addressed. And certainly when there are management problems, they have a tendency to trickle down and affect 

the effectiveness of any agency. 

This is not, however, a new revelation by this committee. Yesterday, Representative Henry Waxman, the ranking member of the 

House Energy and Commerce Committee, sent a letter to our committee outlining his own oversight efforts. Representative Waxman 

helped establish the CSB in 1990 and has engaged in various oversight since its inception. Last November, Representative Waxman 

sent a letter to the CSB chairman and to other board members expressing concern about management challenges and asking a series 

of questions. I will be interested to know what happened with those 

recommendations. 

All three board members responded and Representative Waxman’s staff engaged in consultations over several months with 

them about how the board can function more effectively and efficiently. On May 2nd, 2014, Representative Waxman sent seven recommendations to the CSB. Each board member was given the opportunity to comment on the recommendations before they were finalized. I believe this process and these concrete, sensible recommendations are a prime example of how responsible congressional oversight can and should be conducted. 

In his letter yesterday, Mr. Waxman urged our committee to use 

this hearing to pursue constructive solutions to these challenges. 

He wrote, I believe that the best oversight makes constructive recommendations to improve agency performance. That is what I have 

tried to do through my oversight of the CSB, and I hope you will 

take a similar approach. Your hearing will serve as a valuable purpose if it provides an opportunity to discuss constructive ideas for 

improving CSB’s internal management and operations so that the 

agency can focus on its core mission and investigative work. 

5 

I cannot agree more with these words, and I ask that Mr. Waxman’s full letter and his recommendations be entered into the official hearing record. 

Chairman ISSA. Without objection, it will be placed in the record. 

Mr. CUMMINGS. Thank you. 

To conclude, I know that the chairman invited Mr. Waxman this 

morning, a few minutes before the hearing, to come and be with 

us. Unfortunately, he could not. But I am hoping that we will be 

able to meet with him, Mr. Chairman, since this has been something that he has taken a great interest in and follow up, because 

I think he could be very helpful to us. 

To conclude, I hope this committee will review these recommendations very carefully today and use them as a tool to improve the CSB. It is critical that the CSB function properly. This 

agency is responsible for investigating tragic accidents and making 

recommendations to protect the safety of workers and the public. 

We need board members and CSB staff to work together to ensure 

that the agency can carry out this very, very critical mission. 

With that, Mr. Chairman, I yield back. 

Chairman ISSA. Thank you. 

All members may have seven days to submit opening statements. 

At this time I would ask unanimous consent that the 86-page 

staff report which is also posted on the website, be placed in the 

record. Without objection, so ordered. 

That staff report, by the way, contains all of the recommendations that Mr. Waxman has made, but goes beyond that, and we 

look forward to working with former Chairman Waxman. 

Oh, I apologize. I forgot, it is a joint report with the Committee 

on Science, Space, and Technology. 

I would like to post on the board very briefly 18 U.S.C. 1505. And 

I would like the witnesses to be aware that under 18 U.S.C. 1505, 

Obstruction of Proceedings, pertinent part, it says, whoever—well, 

I will just let you read it. In a nutshell, what I want to make very 

clear is there are criminal penalties for even suggesting that it 

would not be liked, acceptable, or encouraged to speak to Congress. 

I want to make that very clear. It will be part of our line of questioning today. 

It is now my pleasure to welcome our witnesses. The Honorable 

Rafael Moure-Eraso is the Chairman of the U.S. Chemical Safety 

and Hazard Investigation Board; the Honorable Arthur A. Elkins, 

Jr., is the Inspector General of the U.S. Environmental Protection 

Agency. With him is Mr. Patrick Sullivan. He is the Assistant Inspector General for Investigations for the United States Environmental Protection Agency, or EPA. And with us again is the Honorable Carolyn N. Lerner. She is Special Counsel at the U.S. Office 

of Special Counsel. Lastly, on our request, and we appreciate your 

being here, the Honorable Beth Rosenberg is the former board 

member of the U.S. Chemical Safety and Hazard Investigation 

Board. 

Pursuant to the committee’s rules, would you please all rise to 

take the oath and raise your right hands? 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

6 

[Witnesses respond in the affirmative.] 

Chairman ISSA. Please be seated. 

Let the record reflect that all witnesses answered in the affirmative. 

I understand there will only be one opening statement from the 

two IG representatives. That will be fine; either one can make it. 

We now recognize Dr. Eraso. 

WITNESS STATEMENTS 

STATEMENT OF THE HONORABLE RAFAEL MOURE–ERASO 

Mr. MOURE-ERASO. Thank you. Good morning. I am Rafael 

Moure-Eraso, Chairperson of the U.S. Chemical Safety Board, or 

CSB. I would like to thank you for inviting me to speak today. 

First, a quick overview of my background. I came to this great 

Country as an immigrant from Colombia more than 47 years ago 

and I have been a U.S. citizen for 33 years. I hold engineering degrees, as well as a doctorate in environmental health. I served for 

23 years as a university professor and have a lifelong commitment 

to workers’ health and safety. I consider my five-year tenure at the 

CSB, which ends next year, as an opportunity for me to give back 

to this Country. And, as a father and a grandfather, I want to ensure that the accidents we have investigated do not befall other 

communities or other families. 

The CSB is an independent Federal agency known internationally for the exceptionally high quality of our accident investigations. We have deployed to over 100 incidents since 1998. The 

CSB’s work has resulted in over 70 major investigation reports. We 

have released over 25 investigation-based safety videos, which are 

used for training purposes by almost every one of the top 50 U.S. 

chemical companies. 

In the past year, the CSB has faced its most challenging cases 

ever. This includes the Deepwater Horizon blowout and explosion 

in the Gulf of Mexico, which investigation was requested by bipartisan leaders in the House. We are investigating the West Fertilizer accident in Texas, where a plant explosion killed 15 people 

and devastated a town. Our investigation of the Tesoro refinery in 

Washington State revealed industry-wide problems maintaining 

key equipment. Two recent CSB reports on the Chevron refinery in 

the Bay Area of California have led to dramatic changes making 

refineries and chemical plants safer in that State. And the CSB 

continual comprehensive investigation into the chemical contamination of drinking water that occurred in Charleston, West Virginia earlier this year. 

Despite this activity, the CSB has come under some criticism for 

not investigating more accidents and closing more cases faster. I 

assure you we are rapidly closing our backlog. We are holding this 

hearing a total of six public meetings to release findings and reports in impacted communities. However, as I have told the IG 

staff, we are a very small agency charged with a mission of investigating far more accidents than we have the resources to tackle. 

Since I was appointed chairperson in 2010, I have worked very 

hard to improve the operations and management of the CSB to 

work within the resources we have. This involves reorganizing to 

7 

create clear lines of authority in the investigation process, as well 

as accountability. This was absent before my appointment. I have 

taken significant steps to improve communications and transparency among board and staff, including establishing a workplace 

improvement committee and engaging a board facilitator. I brought 

diversity into leadership and I have hired an organizational consultant to work with staff members on developing solutions to their 

problems. I am happy to discuss any of those initiatives in more 

detail. 

Let me say that I have known my fellow board members, Dr. 

Rosenberg, former member, and Mr. Griffin for about 30 years. 

They were former students of mine. With one exception, all of the 

votes on CSB reports that have been involved have been unanimous, so the work of the board is getting done. 

I also want to very briefly mention the subject of alleged retaliation that you may be discussing. I assure you there is no employee 

I am aware of who may have lost his or her job, grade, or any pay 

as a result of complaints made to the Office of the Special Counsel. 

In summary, I am fully committed to improving the work environment in the CSB. We have become a highly effective and respected Federal agency, even while operating on a shoestring budget and staff. We are often told we are one of the most efficient and 

best bargains in Government. I am proud of our work at the CSB. 

I look forward to answering any questions you might have on the 

CSB operations. Thank you, Mr. Chairman. 

[Prepared statement of Mr. Moure-Eraso follows:] 

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Chairman ISSA. Thank you. 

Mr. Elkins. 

STATEMENT OF THE HONORABLE ARTHUR A. ELKINS, JR. 

Mr. ELKINS. Good morning, Chairman Issa, Ranking Member 

Cummings, and members of the committee. I am Arthur Elkins, Inspector General for the EPA and the CSB. Thank you for inviting 

me to appear today. 

While my written statement includes additional detail and broader concerns regarding the CSB, the critical matter that I wish to 

call to this committee’s attention is an OIG investigation that led 

to the issuance of a seven day letter. Background information will 

provide a context. 

In September 2012, the EPA OIG received a complaint from a 

CSB employee alleging that a high level Office of Special Counsel 

employee had disclosed to the CSB official the identities of CSB 

whistleblowers who had filed confidential complaints with the OSC. 

The complaint also alleged that the OSC employee had acted to 

thwart an OSC investigation into the complaints. 

Subsequently, the FBI and the EPA OIG conducted an investigation into whether the OSC employee had obstructed justice. The 

DOJ’s Public Integrity Section declined criminal prosecution. However, the criminal investigation had revealed a key administrative 

issue warranting further investigation into possible violations of 

the Whistleblower Protection and Privacy Acts. 

Because the matter fell outside of the EPA OIG’s jurisdiction and 

the OSC determined it had a conflict of interest, the OSC asked 

OPM’s Office of Inspector General to investigate. 

Meanwhile, in February of last year, the EPA OIG received a 

new complaint alleging that CSB officials were using non-governmental email accounts to conduct official CSB business, and we 

opened a new investigation. 

In May 2013, the OIG requested records of communications for 

a specified time period pertaining to official CSB matters sent to 

Chairman Rafael Moure-Eraso via non-governmental email accounts. The only CSB representative who responded to that request 

was a private attorney hired by the CSB in connection with the 

whistleblower complaints. The private attorney sent only some of 

the records, and some of those were heavily redacted. He said that 

he was withholding other records based on attorney-client privilege 

and/or attorney work product privilege. 

In July and August 2013, the OIG made repeated requests for a 

full and complete production of the requested records. Although the 

CSB acknowledged having the records, it still refused to produce 

them. 

The Inspector General Act is clear that offices of inspectors general have unfettered access to agency records. The Act also requires 

each IG to report to the head of an agency on particularly serious 

or flagrant problems, abuses, or deficiencies. The mechanism for 

doing so is commonly referred to as a seven day letter. 

On September 5th, 2013, the OIG issued a seven day letter to 

Chairman Moure-Eraso. To date, the CSB has provided no records, 

instead, asserting to Congress that the agency is obliged to protect 

13 

attorney-client privilege with respect to third parties, which the 

CSB asserts excuses production to the OIG. 

The IG Act does not provide an exception based on privilege. By 

refusing to provide the requested information, the CSB is preventing the EPA OIG from conducting a complete investigation 

and, in turn, from providing Congress with a meaningful report on 

all of the CSB’s activities. 

In conclusion, the OIG’s investigation has been dormant for 

many months pending the refusal of the CSB to produce the requested documents. The OIG stands ready to carry out its mission; 

however, without congressional follow-up, our seven day letter is 

without teeth. We look to Congress to direct the CSB to produce 

the records. 

When the CSB tells its OIG that it will not comply with the 

OIG’s request for information, it is disregarding the Act that Congress wrote for the protection of taxpayers that Congress intended. 

OIG must be able to obtain access to documents, depend on the cooperation of agencies, and conduct our work without delay. 

When we cannot, we fail the American public in several ways: 

first, repeated attempts to complete an audit or investigation mean 

that we are not attending to other deserving work; second, inefficiency thrives unchecked and potential wrongdoing evades both notice and consequences; third, potential behind-the-scenes misconduct could change the direction of and/or evidence available; 

and, finally, public health is at risk. The CSB’s mission deals with 

matters of life and death. 

Mr. Chairman, this concludes my prepared statement. My Assistant IG for Investigations, Patrick Sullivan, and I will be pleased 

to answer any questions you may have. 

[Prepared statement of Mr. Elkins follows:] 

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Chairman ISSA. Thank you. 

Ms. Lerner? 

STATEMENT OF THE HONORABLE CAROLYN N. LERNER 

Ms. LERNER. Thank you, Chairman Issa, Ranking Member 

Cummings, and members of the committee. Thank you for the opportunity to testify today. This is the third time I have testified before this committee. Most recently, in November 2013, I discussed 

the OSC’s findings on widespread misuse of overtime payments at 

the Department of Homeland Security. Our work with whistleblowers helped to identify over $37 million in annual misuse of 

overtime and provided momentum for bipartisan legislation to address this issue; and I know that Congressman Chaffetz has been 

very active in helping with that legislation, and I thank you for 

those efforts. 

I appreciate the ongoing partnership with the committee in rooting out waste in Government operations and protecting whistleblowers. I also thank Chairman Issa and Ranking Member 

Cummings for your successful efforts to modernize and improve the 

Hatch Act. 

OSC is an independent investigative and prosecutorial agency. 

We protect the merit system for over two million Federal civilian 

employees in four distinct areas: we protect Federal workers from 

prohibited personnel practices, primarily retaliation; we provide a 

safe and secure channel for whistleblowers to report waste, fraud, 

abuse, health and safety issues; we enforce the Hatch Act, keeping 

the Federal workforce free from improper partisan politics; and, finally, OSC enforces the Uniform Services Employment and Reemployment Rights act, or USERRA. 

With that backdrop, I would like to now discuss OSC’s cases involving the Chemical Safety Board, CSB. First I want to describe 

very briefly OSC’s process for investigating retaliation cases generally. 

After an initial intake, complaints are referred for investigation. 

The majority of cases referred for investigation are then screened 

for mediation by OSC’s Alternative Dispute Resolution Unit. If a 

case is not resolved through mediation, it is then sent to our Investigation and Prosecution Unit. 

Investigations routinely involve the following steps at the OSC: 

first, we interview complainants; second, we issue document requests; third, we interview witnesses; and, finally, we interview 

subject officials. 

After an investigation, agencies frequently agree to informally resolve complaints at OSC’s request. When agencies do not agree to 

informally resolve the complaint, we can prosecute cases before the 

Merit Systems Protection Board. 

This committee has requested information on OSC’s investigation 

into retaliation complaints at CSB. While I can certainly provide 

background on procedural issues, of course, I can’t comment on the 

substance of pending investigations. Doing so could affect the outcome of the cases and really hurt our office’s ability to resolve these 

cases. Also, as the final decision-maker on these cases, I can’t prejudice any future action by OSC or influence the parties’ willingness 

to settle. 

22 

With those concerns in mind, the following is a summary of significant procedural and investigative steps that OSC has taken to 

resolve the claims of whistleblower retaliation at CSB. 

In October 2012, several CSB employees filed whistleblower retaliation complaints with OSC. These employees alleged retaliation 

for whistleblowing and other protected activity, including the filing 

of earlier OSC complaints in 2011. That 2011 complaint, which was 

also filed by additional CSB employees, alleged that CSB management engaged in improper hiring practices. 

After receiving the retaliation complaints, OSC assigned the 

cases to an investigator. That investigator reviewed the submissions and scheduled interviews with the complainants, which began 

October 25th, 2012. 

On December 28th, 2012, OSC requested documents from CSB 

with a deadline for providing the information by January 7th, 

2013. In May 2013, CSB responded. They provided a disk with 

most of the responsive information. But CSB withheld some information based on claims of attorney-client privilege, and to date has 

not provided this information. CSB has also not provided us with 

a privilege log or an explanation of the individual documents that 

were withheld from OSC’s review. 

In September 2012, OSC attempted to schedule interviews of the 

subject officials. OSC issued a subpoena to the primary CSB management subject official to ensure that the interview date would not 

continue to slip and OSC could complete its investigation. Each of 

the subject officials was interviewed between December 18th, 2013, 

and January 14th, 2014. 

OSC’s investigation provided the foundation for resolving one of 

the retaliation complaints, which recently settled in April 2014. 

This retaliation complaint was closed pursuant to that settlement. 

The other cases remain open and are pending in our Investigation 

and Prosecution Division. We are very actively working to settle 

those cases. 

I thank you again for the opportunity to testify. I would be very 

happy to answer the committee’s questions. 

[Prepared statement of Ms. Lerner follows:] 

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Chairman ISSA. Thank you. 

Dr. Rosenberg. 

STATEMENT OF THE HONORABLE BETH ROSENBERG 

Ms. ROSENBERG. Thank you, Chairman Issa, Ranking Member 

Cummings, members of the committee. I was requested to testify 

today regarding my tenure as board member at the U.S. Chemical 

Safety Board. I was nominated by President Obama and confirmed 

by the Senate on January 1st of 2013 for a five-year term. I resigned as of May 31st, 2014, after 17 months. For the previous 16 

years, I was a professor at Tufts University School of Medicine, 

where I taught occupational and environmental health in the public health program. 

The mission of the board is unique and important: to investigate 

the root causes of major incidents in the chemical facilities and oil 

refineries, and to make recommendations based on the evidence to 

prevent those incidents from happening again. 

The CSB faces certain challenges in fulfilling its mission that are 

beyond its control. It is intended to be an expert advisory body 

similar to the National Transportation Safety Board, but it has no 

means, other than the weight of its evidence, to ensure its recommendations are implemented. With current staffing and resources, it cannot possibly investigate all the incidents and deaths 

that it should. 

But there are four major challenges that are within the control 

of agency leadership that must be addressed. 

One, there is a chilled atmosphere. Staff has been formally discouraged from talking to board members, according to an email 

from the managing director. Some staff said they were nervous 

about being seen talking to me, so we met outside of the agency. 

There are no opportunities for staff and board members to discuss 

issues openly. Those whose opinions differed from those of senior 

leadership are marginalized and vilified. At the CSB, disagreement 

is seen as disloyalty. Criticism is not welcome and staff fear retaliation. 

Two, governance is ineffective. Board members are excluded from 

core policy functions. For example, Board Member Griffon and I 

learned about the senior management’s decision to stonewall documents that were requested by the EPA inspector general and the 

issuance of a seven day letter in the press. We saw the CSB’s response to the IG after it was sent. As part of an executive order 

on chemical facility safety and security, the President called on the 

CSB to enter into memorandum of agreement with several agencies. This was spurred by complaints lodged with the White House 

about interagency conflicts in the course of CSB investigations. 

After negotiations with the DOJ were underway, we were 

briefed, but we had no say in determining the CSB’s position. This 

is troubling, because the DOJ has the discretion to enforce the 

CSB’s subpoenas, and cooperation is essential. Other matters involving interagency relations, such as how to deal with demands 

for CSB records from EPA or whether a report should be delayed 

for a few months because another agency is in the midst of a criminal prosecution, were decided without a vote of the board. Board 

Member Griffon and I did not know about the disposition of these 

28 

policy issues until after the fact. Finally, it is the position of CSB’s 

general counsel that senior leadership that the board orders, despite being voted upon and serving as the basis for orderly conduct, 

have no legal significance, so they are sometimes circumvented, 

which contributes to agency dysfunction. 

Three, there is a lack of accountability both from the staff to the 

board and the board to the public. The agency has a backlog of investigations partially due to understaffing, but mainly due to lack 

of planning. There is no comprehensive investigation plan to deal 

with the backlog. The action plan consists of a list of unfinished investigations, but they are not prioritized, nor is there any discussion of the priorities. 

In a public meeting in July of 2013, Mr. Griffon and I made a 

motion to have a public meeting to get a status report on all open 

investigations, and to clarify the scope and time line for the reports. With the current governance model, a request by the majority of the board is treated as irrelevant, so still there is no plan. 

The absence of a plan is a major contributor to low staff morale because staff don’t know the priorities and complain about getting 

yanked from one project to the next as priorities shift. 

Our fundamental job as board members is to set high standards 

for quality of evidence, analysis and recommendations. Yet, when 

Mr. Griffon and I raised questions about the lack of data supporting a recommendation to restructure safety regulation of the 

Nation’s oil refineries, we were portrayed as delaying the report, 

disrespecting the investigators, and ‘‘siding with the worst and 

most unfair critics of the CSB.’’ 

Fourth, there is a lack of transparency. The board rarely conducts a deliberative public meeting. Almost all votes on agency 

matters are taken in private through a notation vote. Public meetings are almost exclusively productions choreographed to maximize 

media coverage, but where public questions and comments are 

largely ceremonial; they have no impact because the investigation 

reports are already finalized. Regular Sunshine Act meetings would 

be a way to interact with, and be accountable to, our stakeholders 

and other members of the public. 

There are obvious ways to deal with all of these problems. Instead, a work improvement group was formed, and facilitators and 

consultants have been hired. I came to realize that these are hollow 

gestures intended to deflect criticism while fundamentally changing 

nothing. The staff of the CSB, and the American people, deserve 

better. 

Thank you for your consideration. 

[Prepared statement of Ms. Rosenberg follows:] 

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36 

Chairman ISSA. Thank you. 

Dr. Moure-Eraso, one of the allegations that has permeated the 

testimony so far, after yours, was a question of retaliation. In your 

opening statement you said no one had lost pay, nobody had been 

fired. Was anyone reduced or eliminated, to your knowledge, in any 

way shape or form, their work duties that may have been construed as retaliation? 

Mr. MOURE-ERASO. No, Mr. Chairman. A person was transferred 

from a position of senior executive to another position of senior executive. That is the issue on that, they are describing as retaliation. 

Chairman ISSA. Okay. So they think it is retaliation; you disagree. 

Mr. MOURE-ERASO. I definitely disagree, yes. 

Chairman ISSA. Were you in a senior level meeting in which any 

discussion that could be in any way construed as to discourage people from speaking with congressional investigators was discussed, 

including, but not limited to, statements such as we would prefer 

you not speak to members of Congress or investigators? Anything 

along that line? 

Mr. MOURE-ERASO. I don’t believe so. I might have a conversation with Dr. Rosenberg when I find out that she was going to 

come, and I discussed with her if she was going to present testimony. But I was not trying in any way to interfere with her coming 

here. 

Ms. ROSENBERG. That is correct. 

Chairman ISSA. Okay. Do you know a gentleman named Dan 

Tilman? Tillema? 

Mr. MOURE-ERASO. Dan Tillema? Yes. He is one lead investigator 

in our Denver office. 

Chairman ISSA. It has been alleged, and we have a whistleblower 

on this, that a senior CSB official recently told a group of CSB investigators not to speak with committee staff. Do you know anything about that? 

Mr. MOURE-ERASO. I don’t know anything about that, Mr. Chairman. 

Chairman ISSA. Okay, let me ask the question one more time 

very carefully. A whistleblower has informed us that a senior CSB 

official recently instructed CSB staff not to talk to anyone in Congress. Specifically, the aide’s exact words were: ‘‘Someone from 

Congress will be calling you regarding an investigation. We would 

rather you not speak with them. We can’t tell you not to. You can 

choose to do that if you want, but we’d rather you didn’t.’’ 

Any lines, any words like that ring any part of your memory, sir? 

Mr. MOURE-ERASO. No. I never have said those words, and I am 

not aware of anybody that has said it to Mr. Tillema. 

Chairman ISSA. So if we were to not believe Dan Tillema, then 

we would believe these words weren’t said. If we are to believe him, 

then do you believe those words were said? Because that is what 

Dan Tillema has told us. 

Mr. MOURE-ERASO. I don’t know what Mr. Tillema told you. 

What I am telling you is that you are asking me if I make any attempts to discourage for him talking—— 

37 

Chairman ISSA. No, did you have a conversation with Dan 

Tillema that could have caused him to think that those words were 

appropriate to say? 

Mr. MOURE-ERASO. I absolutely and categorically deny that I 

ever had a conversation with Mr. Tillema. 

Chairman ISSA. Will you agree to speak to Mr. Tillema and make 

it clear that those kinds of words would rise under 18 U.S.C. as 

a criminal obstruction of Congress? To discourage from speaking to 

members of Congress is in fact an obstruction, in this chair’s opinion. 

Mr. MOURE-ERASO. I don’t understand your question. Could you 

repeat it, please? 

Chairman ISSA. Does Dan Tillema work for you? 

Mr. MOURE-ERASO. Yes. 

Chairman ISSA. A whistleblower has told us that he said that. I 

want to tell you right now that I believe that is a criminal obstruction of this committee’s work in the way that the whistleblower 

said it was said. Will you agree to inform him of that and speak 

to him about whether or not he said it and get back to us? 

Mr. MOURE-ERASO. I most certainly will discuss with him this 

issue, yes. 

Chairman ISSA. Dr. Rosenberg, you left this board and you had 

only recently joined it. I would presume that you had intended to 

and hoped to serve all six years on this board, is that correct? 

Ms. ROSENBERG. That is correct. 

Chairman ISSA. If the environment were conducive and shared, 

as boards normally are, would you still be there? 

Ms. ROSENBERG. Of course. 

Chairman ISSA. We have alleged, I have alleged in my opening 

statement that we have found a hostile work environment not just 

for the board, but for employees and investigators. Would you concur with that? 

Ms. ROSENBERG. Yes. I think the level of dysfunction reached 

such a level, and I had no hope of it improving, so I left. 

Chairman ISSA. Thank you. 

Doctor, I want to go over something very briefly with you, then 

I am going to go to the ranking member. There will probably be 

a second round. This committee has received only two seven day 

letters during my tenure, and only one for my predecessor. It is an 

extraordinary event. It shouldn’t be, we should get more of them, 

but it is an extraordinary event. IGs view this as no options left. 

You already have received subpoenas, and apparently not answered 

to the satisfaction of the investigators. The claim of attorney-client 

privilege from a Government agency is extremely limited, extremely limited, and Government or Government-related documents that in fact are generated under the work of the Federal 

Government, paid for during time or with resources of the Federal 

Government, are not, in the ordinary course, allowed to become attorney-client privilege. The absence of a privilege log is unacceptable anywhere in America. 

So I want to very briefly explain something to you. My intention, 

if it is not resolved by the end of the week, would be to issue my 

own subpoenas that would mirror all of the subpoenas that are outstanding and not properly responded to. They would have a oneVerDate Aug 31 2005 09:37 Jul 31, 2014 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 C:\DOCS\88827.TXT APRIL
38 

week deadline. If they are not responded to, we would seek to hold 

you in contempt and refer it for criminal prosecution. I am not 

going to speak for the Executive Branch, but I can tell you that 

that process takes us less than 30 days before we are sitting there 

with a U.S. attorney on a criminal contempt that, in fact, by statute, says that the U.S. attorney shall prosecute; not may prosecute, 

shall prosecute. So I would strongly encourage you, at the conclusion of this, to use the time of your board and your time with your 

attorney to reach a successful conclusion lest I go through a process 

that I don’t want to go through and should not have to go through 

on behalf of independent investigators who have absolute authority 

and expectation to receive all appropriate documents. And if there 

is a limited privilege, that it be clearly explained in a privilege log. 

Doctor, do you understand that? 

Mr. MOURE-ERASO. I understand that, yes, Mr. Chairman. 

Chairman ISSA. Thank you. 

We now recognize the ranking member. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

As I was listening to you, Dr. Rosenberg, I want to thank you 

for being here. I was thinking about management styles. When I 

hire people, I hire the brightest and I hire people with compassion, 

and then I let them do their job. I always try to hire people smarter than me. And as I listened to what you were saying, it seems 

as if I do believe that leadership, in most instances, come from the 

top. In other words, if you have a dysfunctional leader, everything 

goes bad. 

You made some very strong statements, and I have no reason to 

believe that—it is hard for you to even come here and do that, and 

I understand that. But when we are looking at all of this, sometimes I have noticed on staffs you could have one person that kind 

of messes up the whole staff, but, on the other hand, you may have 

problems throughout. I mean, when you look at the problems you 

have stated, are they coming from a few, is it a few people, is it 

one person? You must have thought about this a lot. Any time you 

leave a position as early as you did, I am sure you had a lot of conversations about this, even if only in your own mind. Your comments? 

Ms. ROSENBERG. I think the senior leadership is the problem. 

The agency is broken; it needs to be rebuilt. And I think the senior 

leadership, the combination of ignoring board orders, which provide 

for board participation in policy matters, and the generally—there 

is a theme in the agency that disagreement is disloyal, and I come 

from an academic background where disagreement provides room 

for debate, and it should be open. And that is one of the reasons 

I am going back to my academic environment, because that is 

where you get to the truth, and that is missing in this agency. 

Mr. CUMMINGS. Do you know why the staff was afraid of being 

seen communicating with the board members? Do you know why 

that was? 

Ms. ROSENBERG. Yes. There is a memo from the managing director discouraging staff from doing that. It is attached to my testimony. And it was supposedly to provide more strict order in the 

agency, but it had a very chilling effect. 

39 

Mr. CUMMINGS. And do you believe that the atmosphere you 

have described had a negative impact on the work products of the 

agency? 

Ms. ROSENBERG. Yes. 

Mr. CUMMINGS. No doubt about it? 

Ms. ROSENBERG. Because a range of opinions couldn’t be considered; it was decided and the staff was supposed to produce a report 

that would address the concerns of the senior leadership. This is 

most prominent in the case of the whole safety case regime debate. 

Mr. CUMMINGS. Now, Mr. Chairman, Dr. Moure-Eraso, how do 

you respond to that? You have a board member who gets appointed, and that is no little deal, and folks looking all into her 

background and everything, having to be vetted and go through all 

that, and then they don’t stick around, she doesn’t stick around because of the things she said. What is your response to that? Because I have to tell you the fingers are pointing at you, my brother. 

Mr. MOURE-ERASO. Mr. Cummings, I would like to say that probably it is a misunderstanding of former Board Member Rosenberg 

of how Government agencies function. There are lines of responsibility and there are lines of authority. 

Mr. CUMMINGS. But she talked about things happening that were 

supposed to come under the board, that they were supposed to be 

board votes, am I right, and that there was an end-around. I mean, 

come on now. 

Mr. MOURE-ERASO. Well, you know, I would like to see what specifics is she talking about. The principal function as a board and 

for the board members is to examine carefully the technical quality 

of the product that we put out and to vote on it. Now, the votes 

that we took during the time that Dr. Rosenberg was there, and 

the products that we produced, she always voted and said that the 

reports were alright, that she agreed with the reports, and she 

voted in the affirmative, with the exception of the one that she is 

mentioning that we have disagreements on the safety case. 

Mr. CUMMINGS. Okay. 

Mr. MOURE-ERASO. All the others she voted in favor for. I mean, 

she had an opportunity, ample opportunity to provide her ideas 

and to try to change the reports when they are presented to her. 

This is not imposing to anybody, it is an open process that is very 

well delineated in our system. 

Mr. CUMMINGS. Well, obviously, she doesn’t feel that way. 

Dr. Rosenberg, very briefly, please. 

Ms. ROSENBERG. Indeed, I agree with Dr. Moure-Eraso that I did 

participate in investigations in that way, but the board, as outlined 

in the Moss opinion, there have been battles around the role of 

board members in this agency before. This Moss opinion, written 

in June of 2000, nearly 14 years ago, addresses the problems and 

the roles and responsibilities of board members. And what my complaint was is that the board members were marginalized from 

many decisions, many policy decisions that had huge effects on the 

board, the functioning of the board. So, yes, I agree, we dealt with 

investigations together, in a collegial way, but there are other subjects, like interagency relations, where we were completely 

marginalized. 

40 

Mr. CUMMINGS. Doctor, I am running out of time, but let me just 

ask you this. Former Chairman Waxman made some recommendations; he has been in contact with you all. What have you done 

with regard to the recommendations? Can you give us a progress 

report? 

Mr. MOURE-ERASO. Yes, I would be very glad, Mr. Cummings. 

You know, if you look at the list of what Mr. Waxman sent to me 

as his recommendations, one of the concerns that he had was information that should come from the chair and the staff to the board 

members. We immediately established a system by which we open 

weekly meetings in which we requested that the board members 

participate. In our weekly meetings, every staff member describes 

the progress of the particular investigation or action that is involved. 

Mr. CUMMINGS. He also suggested that you meet with the board 

members, is that right? Did you do that? 

Mr. MOURE-ERASO. Exactly. He suggested that if any of the 

issues that I identified in those weekly meetings, if a board member would like to discuss additional things privately with me or 

with any board member or with the staff, that they should be made 

available for that. That has been established too. One of the problems that we have, Mr. Cummings, is that the board members tend 

to not spend a lot of time in Washington, DC. It is very hard to 

really establish systems of communication when the physical presence of the board members is hard to obtain, but that has been established. 

We also, in response to Mr. Waxman’s concerns about the staff 

complaints on their morale and their happiness in the agency, as 

I mentioned before, we established a group, an independent group, 

freely open group that we call the Work Improvement Committee, 

that has been chosen among all the staff, that have been meeting 

since December, and that we have assigned a management consultant. The company is the Cardin Corporation of St. Louis that is 

helping them to establish processes and systems to improve the 

quality of work in the agency. 

Mr. CUMMINGS. Dr. Eraso, I have run out of time, but I want to 

thank you, chairman, for your courtesy. But I have to tell you, sitting up here listening, it seems like the fingers are pointing at you. 

I am just telling you. And some kind of way we have to get passed 

that; we have to figure that out, exactly how do we get this agency 

to functioning, because I think several people said it already. When 

it is not functioning properly, the American people suffer. And part 

of our job here is to make sure that Government does what Government is supposed to do effectively and efficiently. 

Thank you, Mr. Chairman. 

Chairman ISSA. I thank you. If I could ask the indulgence of the 

ranking member, I just want to read something from Dr. Rosenberg’s statement. This was produced to us November 1st, 2011, 

email from Daniel Horowitz, the Managing Director of this organization. And it says, and I think it is important to have it consistent 

with the ranking member’s statement, it says, Accordingly, I expect 

all managers and supervisors to keep me abreast of recommendations and proposals they would like to send to board members, and 

41 

to seek my input before proceeding to convey these recommendations directly to board members. 

Dr. Rosenberg, I think the ranking member was trying to get 

this. Is this the kind of thing that you saw standing in the way of 

your getting the direct access board members would expect in their 

oversight and fiduciary role? 

Ms. ROSENBERG. Yes, because I think everybody should be able 

to talk to everybody in an agency. And, mainly, I don’t think staff 

should be intimidated from being seen talking to board members. 

I had many meetings in the ladies room. 

Chairman ISSA. I have few. 

[Laughter.] 

Chairman ISSA. The last piece of indulgence, I have served on 

both public and private boards. What we are seeing here today is 

not unusual to have as a debate. But I can tell you that if we look 

back to what we did to the boards of Enron and Worldcom and 

other corporations when their board members did not, in fact, insist on direct access, communication, and, if you will, fact-checking, 

should remind us all that board members have an independent fiduciary obligation to do just that, to have independent knowledge 

of everything that they vote on and what the chief executive is 

doing. 

Mr. Mica, thank you for the indulgence, of both the chairman 

and ranking member of each other. 

Mr. MICA. Thank you. 

I think everyone on the panel would agree that the U.S. Chemical Safety Board has an important mission and responsibility. Dr. 

Moure-Eraso, yes? Mr. Elkins? 

Mr. ELKINS. Yes. 

Mr. MICA. Inspector General of EPA Lerner? 

Ms. LERNER. Extremely important. 

Mr. MICA. Two of you that have looked at this, Mr. Elkins, Mr. 

Sullivan, it is also important that we protect whistleblowers and 

people who come forward with information about misconduct within an agency. Did you see, through your investigation, Mr. Elkins, 

mishandling of whistleblower identity? 

Mr. ELKINS. Let me refer that question to Mr. Sullivan. 

Mr. MICA. Okay. Mr. Sullivan? 

Mr. SULLIVAN. Mr. Mica, yes, we received a lot of feedback from 

employees of CSB alleging that they were being retaliated against, 

and when their information went forward, they were—— 

Mr. MICA. So not only mishandling, but also retaliation. 

Mr. SULLIVAN. Yes. That was the allegation, yes, sir. 

Mr. MICA. Okay. And then, Mr. Elkins, I guess there is a tool 

that is referred to as a seven day letter, which isn’t deployed that 

often. It is an IG tool, inspector general’s tool, is that correct? 

Mr. SULLIVAN. Yes, that is correct. 

Mr. MICA. Okay, so it is rarely done. 

In September of 2013, there was a seven day letter informing 

Congress of the Chemical Safety Board’s refusal to cooperate in an 

investigation and the mishandling of whistleblower identities, is 

that correct? 

Mr. SULLIVAN. That is correct. 

Mr. MICA. Okay. Had you ever issued a seven day letter before? 

42 

Mr. SULLIVAN. That was the first in my tenure. 

Mr. MICA. Okay. Why did you issue a seven day letter in this 

matter? 

Mr. SULLIVAN. Well, sir, we obviously, before we get to—— 

Mr. MICA. You are hard to hear. Pull it up. 

Mr. SULLIVAN. Obviously, before we get to the point of issuing a 

seven day letter, we want to have discussions and convey to the 

agency just how serious of a matter it is for us to take that extreme 

measure. I have personally had conversations with the chair and 

my investigators had conversations with CSB staff requesting documents, letting them know that we needed those documents in order 

for us to complete our mission, and we were just stonewalled; it 

just didn’t happen. 

Mr. MICA. You were just stonewalled. 

Mr. SULLIVAN. Absolutely. 

Mr. MICA. Okay. And so, again, the first time you had to issue 

such a letter. What is the current status of your investigation? 

Mr. SULLIVAN. Right now, it is dormant, sir. We don’t have the 

information. We can’t go forward until we have the information. 

Mr. MICA. Now, the whole thing sounds like a three-ring circus 

in a very important agency with important responsibilities of oversight. I don’t know if the staff can put up the list of the Chemical 

Safety Board investigations, but I am told that most cases they are 

supposed to have a majority vote of the board and they should 

issue a report in a timely manner, usually within six months. It is 

interesting, some of our staff interviewed some folks in this investigation who had served on the board. 

Ms. Rosenberg, I guess you are off the board; this isn’t your 

quote, but it says, do you feel the pace of investigations has slowed 

in recent years? And this particular one, not identified, said, Oh, 

yes, and I think it is certainly the opinion of the outside yes. Not 

only has the pace of investigation slowed, but what they would call 

the quality of investigations has deteriorated as well. 

Now, this is a former board member. Dr. Rosenberg, would you 

agree with that? 

Ms. ROSENBERG. I don’t know. I was only there for a year and 

a half, so I don’t know if the quality has deteriorated. 

Mr. MICA. Okay, well, this is a former member who doesn’t want 

to be identified. 

Ms. ROSENBERG. Right. But I do know things are taking longer. 

Mr. MICA. Here is a list put up here of, in fact, the investigations. BP investigation still incomplete; Silver Eagle, 5.5 years; 

Citgo, 5 years, 4.7 pending. The list goes on and on. This is an important responsibility with an important mission, isn’t that right? 

Ms. ROSENBERG. Yes. 

Mr. MICA. And, again, it doesn’t seem to me and also to someone 

else who served on the board who stated in our investigation that, 

one, that these investigations and reviews are being done in a 

timely manner and then also the concern about the quality; and, 

in the meantime, we have a three-ring circus with whistleblowers 

coming forward, telling Congress that this place is out of control, 

board members resigning, chaos in one of our most important safety oversight agencies. 

43 

Mr. Chairman, this is not acceptable. I will work with you, whatever steps we need to take to try to bring this agency into control, 

acting responsibility and accountably. I will join you. 

And I yield back. 

Chairman ISSA. I thank the gentleman. 

Dr. Rosenberg, you were trying to say something. No? You are 

okay. 

I think it is Mr. Connolly next. No, it was Mr. Tierney, Ms. 

Kelly. It is Mr. Connolly. 

Mr. CONNOLLY. I thank the chair. 

Dr. Moure-Eraso, I have the memo given by staff members, I 

guess, to CSB board members, called Rebuilding Trust, dated February 10th, 2014. You are familiar with that memo? 

Mr. MOURE-ERASO. Yes, I am. January 27, I believe? 

Mr. CONNOLLY. February 10th. 

Mr. MOURE-ERASO. February 10th. 

Mr. CONNOLLY. And you are cc’d on it by name. 

Mr. MOURE-ERASO. Yes. Okay, I am aware. 

Mr. CONNOLLY. And you have read the memo? 

Mr. MOURE-ERASO. I did read the memo, yes. 

Mr. CONNOLLY. This memo directs board members, who presumably direct the agency, not the other way around, board members 

and staff will not speak ill of agency employees; board members 

must work sincerely and diligently to comprehensively review reports in a timely way; board members must be open and transparent with staff about their views and positions; they should declare their positions and intentions prior to a public meeting, thus 

nullifying the purpose of a public meeting; and absent some unforeseen circumstances, those views should be consistent with votes 

cast. Board members must cease and desist from the extreme negative trashing of the agency to the public and stakeholders. The investigative team lead supervisors group requests to meet with the 

board members. 

Who wrote this memo, and did you approve it? Do you approve 

the sentiments of this memo? 

Mr. MOURE-ERASO. That memo, as far as I understand, was written by the staff. I think it has signatories on it. I don’t have anything to do with it. 

Mr. CONNOLLY. What was your reaction to it? You are the chairman. 

Mr. MOURE-ERASO. Well, there is some good points that they 

made there. 

Mr. CONNOLLY. Good points? This is prescriptive. Doctor, this is 

telling the board to stay in a place and the staff substituting itself 

for governance. That is what this memo says. I have been in public 

life for 20 years; I was in the private sector for 20 years. I have 

never seen a document like this, and a more inappropriate document like this. The public trusts your agency to carry out its mission and you, sir, as the chairman, to manage the agency. Instead, 

what this memo tells us is they are managing you, sir. What was 

your reaction to this memo? 

Mr. MOURE-ERASO. As I was telling you, I was concerned about 

letters that were made public from board members in which they 

say that they were ashamed of the work of the agency and that 

44 

they considered our reports cut and paste work, when our reports 

are recognized in the world of—— 

Mr. CONNOLLY. So what? So what, a board member is critical? 

Mr. MOURE-ERASO. Well, I would say this, that the recommendation that board members don’t try to discredit the agency in public 

was a good recommendation. 

Mr. CONNOLLY. Really? Well, this goes far beyond that, sir. This 

goes far beyond that. 

Dr. Rosenberg, your reaction, since you are named in that document? 

Ms. ROSENBERG. I was appalled by that, but you must understand that that memo came a couple weeks after the Chevron vote, 

where it was the only time that two of the board members voted 

to postpone a vote; not to reject a report, but we asked for more 

information on the safety case. So there was a lot of hostility in the 

agency after that and that memo came in response a couple weeks 

later to that, and it was appalling. And I showed it to Waxman 

staffers because you know I was a new board member and I 

thought, first of all, we are supposed to deliberate, we are not supposed to declare our votes before a public meeting. How disrespectful to the public. 

Mr. CONNOLLY. I would just say to my chairman, I mean, honestly, there have been public hearings I have come to here thinking 

I had one set of views and the public hearing has changed my 

mind; there is new information illuminating something. You are 

right, that is the purpose of a public hearing, presumably. If we already have made up our minds—and, by the way, this doesn’t just 

say you ought to make up your mind before—it says you must declare your position prior to that public hearing. 

Ms. ROSENBERG. Appalling. 

Mr. CONNOLLY. Dr. Moure-Eraso, if you think this has some good 

points, I have a problem with your tenure as chairman of an agency. 

Mr. MOURE-ERASO. I hear you, congressman. I would like to 

make the point that the signatories of those memos, I consider 

them whistleblowers. They were reporting interference on their 

work. 

Mr. CONNOLLY. That is not what this says. 

Mr. MOURE-ERASO. And I consider that they were trying to do 

the best job that they could have. And again I report I am not the 

author of that. 

Mr. CONNOLLY. If the chair would just allow me to finish. 

Chairman ISSA. Of course. 

Mr. CONNOLLY. Look, I want to protect whistleblowers too. This 

is about a staff that is out of control. This is about a dysfunctional 

culture. This is about lack of leadership at the top, Dr. MoureEraso. This is about a board not doing its job and a staff substituting itself for the board, which is supposed to be the governance of the agency; and no wonder the public must have some eroding confidence in your ability to fulfill your mission. 

But this is so prescriptive as to be entirely inappropriate. No corporation, no business, no other public sector entity would ever tolerate the sentiments, the prescriptive sentiments that are outlined 

in this document. It is, to me, a shocking document, and your reacVerDate Aug 31 2005 09:37 Jul 31, 2014 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\88827.TXT APRIL
45 

tion, sir, since February 10th and today, under oath before this 

committee, I think raises serious questions about your fitness to 

hold your job. 

I yield back. 

Chairman ISSA. Mr. Connolly? 

Mr. CONNOLLY. Yes, sir. 

Chairman ISSA. If we could enter into a quick colloquy. 

Mr. CONNOLLY. Of course. 

Chairman ISSA. You are independently elected to this board 

known as Congress, right? 

Mr. CONNOLLY. That is right. 

Chairman ISSA. But I was elected chair. 

Mr. CONNOLLY. Yes, sir. 

Chairman ISSA. I have staff. 

Mr. CONNOLLY. You sure do. 

Chairman ISSA. Technically, all the staff of the committee technically work for the chairman, even though they are divided. 

Mr. CONNOLLY. That is correct. 

Chairman ISSA. Could you imagine if we sent a letter out saying 

that you could not disagree with me and that you could not have 

an opinion unless you issued it before, for example, today’s board 

meeting? 

Mr. CONNOLLY. Sir, I could not. And, furthermore, the idea that 

staff tells me, by the way, not even you, I have to declare my position a priori before we have the hearing. And unless there are extraordinary circumstances, I am not allowed to change that opinion 

when I vote. Now, I would say that some of our colleagues certainly 

do that routinely in this body, not just this committee, but we all 

reserve the right to change our minds. We all arrogate to ourselves 

our sovereign right to cast our vote as we see fit, without staff or 

even our colleagues directing us otherwise; and that is what this 

document does, Mr. Chairman. I would ask that it be, if it hasn’t 

already been, placed into the record. 

Chairman ISSA. Without objection, it will be placed in the record. 

Mr. CONNOLLY. I thank the chair. 

Chairman ISSA. Doctor, I hope you see how you are being mocked 

here by people who have the same situation you and Dr. Rosenberg 

had; independently put on a board, one given the title of chair, but 

not dictator. 

Mr. Turner, you are recognized for five minutes. 

Mr. TURNER. Thank you, Mr. Chairman. I want to share all the 

concerns of the members who have spoken. When you look at an 

agency that has such incredible importance and the concerns of its 

becoming dysfunctional, I think lives and certainly many facilities 

are put at risk. So I am very troubled by the issues that we are 

seeing today. 

I am also very shocked about the revelations about the possible 

retaliation against whistleblowers and mismanagement of the 

Chemical Safety Board that appears to have essentially crippled 

the agency’s ability to fulfill its mission, and has not only compromised the ability of employees to report waste, fraud, and mismanagement, but public safety as well; and I want to relate it to 

an incident that occurred in my district on May 4th, 2009. 

46 

An explosion and fire occurred at an environmental services facility in my community. It was known as the Veolia ES Technical Solutions, LLC facility in West Carrollton, Ohio. The incident resulted in four individuals being injured, two of which sustained severe injuries; eight damaged structures of the plant and approximately 20 additional businesses and residences in the area. 

Mr. Elkins, you are the EPA inspector general. The CSB is within your jurisdiction and Congress expects the CSB to issue its reports in a timely manner. The case study on the incident that occurred in West Carrollton, Ohio was issued July 21st, 2010. The incident occurred on May 4th, 2009, slightly over a year after the accident occurred. 

Mr. Elkins, in your experience, was this the time frame of CSB’s 

work typical prior to Dr. Moure-Eraso’s joining the board? The report was issued in about one year. 

Mr. ELKINS. Well, what I can do maybe in response to that is 

give you some idea of investigations that were planned to be completed and when the investigations were actually completed based 

on reports that we have issued. 

Mr. TURNER. Please. 

Mr. ELKINS. Over the last six years, from 2007 to 2012, we 

showed that the CSB investigations were planned to be completed, 

53 investigations, and of those only 31 were actually completed, 58 

percent. 

To address your question specifically, in terms of timing, in 2007, 

10 investigations were planned, 10 investigations were completed, 

100 percent. 2008, 6 were planned, 6 were completed, 100 percent. 

Now we get into 2009; 6 were planned, 4 were completed, 66.67 

percent. 2010, 8 were planned, 4 were completed, 50 percent. 2011, 

15 were planned, 5 were completed, 33 percent. And in 2012 8 were 

planned and only 2 were completed. 

Mr. TURNER. These reports are very important. Not only do they 

give us an assessment of what occurred, but they give us recommendations for the future. 

Dr. Moure-Eraso, could you respond to this? As we look at this, 

I am shocked to read in your written testimony where you cite all 

of the accomplishments, but clearly you have to acknowledge that 

this is an absolute failure. This has been a point where this has 

become crippling. 

Mr. MOURE-ERASO. I disagree with you, Congressman. 

Mr. TURNER. Okay, let me back up, then. I thank you for your 

disagreement. Do you consider a goal for these to be completed? 

Mr. MOURE-ERASO. Absolutely. 

Mr. TURNER. Okay. Now pause. What is an appropriate time 

frame that someone could expect performance? 

Mr. MOURE-ERASO. It depends on the quality of the report that 

you would like to have. 

Mr. TURNER. Quality also includes the concept of finished. Could 

you give us the time frame in which someone could expect the work 

to be completed? 

Mr. MOURE-ERASO. It depends, Congressman. 

Mr. TURNER. Okay. Well, we are going to move on. I understand 

that your performance will speak for itself, and your inability to 

47 

give us a time frame I think is reflective of the fact as to why they 

are not being completed. 

Now, doctor, you stated in your written testimony, since 2010 I 

have worked very hard to improve the management and operations 

of the CSB. Under your leadership, the CSB has lost seasoned investigators that could help the CSB fulfill its mission and performance work in a timely manner. Given that investigations have been 

significantly delayed under your leadership, and certainly you have 

no other data that shows that they have not been delayed, how 

would you rate the success of the CSB in trying to rectify this 

delay? 

Mr. MOURE-ERASO. By the recognition of the quality of the reports that we have produced. For example, the report on Deepwater that we presented last week; the report in Tesoro that took 

a lot of time but it has had a tremendous impact on the refinery 

industry; our report in Chevron that changed the way that Cal/ 

OSHA investigated refineries in California. And I could give you a 

list of the accomplishments that—— 

Mr. TURNER. I think universally everyone on this congressional 

committee sees that the loss of employees, your lack of management, and the lack of completing work is a critical failure on the 

part of your service. Thank you. 

Chairman ISSA. Thank you. 

We now go to the gentlelady from California, Ms. Speier. 

Ms. SPEIER. Thank you, Mr. Chairman, and thank you to our 

witnesses who have appeared. 

Chairman Moure-Eraso, you are aware that there was a serious 

fire at the Chevron refinery in Richmond, California that sent 

15,000, 15,000 people to the hospital. Could you tell me who the 

chairman was of CSB at the time the investigators were sent to the 

refinery? 

Mr. MOURE-ERASO. That investigation was in charge of the Winston office that is directed by Mr. Holstrom. 

Ms. SPEIER. No, who was chairman. 

Mr. MOURE-ERASO. I was the chairman. I was the chairman 

when that investigation was deployed to Chevron in Richmond in 

2012. 

Ms. SPEIER. When was Mr. Bresland chair? 

Mr. MOURE-ERASO. Mr. Bresland was chair until 2010. He was 

a board member when we deployed on that place, but he wasn’t the 

chair; I was the chair. 

Ms. SPEIER. You were the chair. 

Mr. MOURE-ERASO. He was a board member. 

Ms. SPEIER. Is it true that Mr. Bresland resurfaced as a paid 

consultant to Chevron, criticizing the very investigation that he 

was involved in starting? 

Mr. MOURE-ERASO. Yes, it is true. He presented testimony criticizing the findings of the report in the public meeting that we had 

in Richmond in January this year. 

Ms. SPEIER. And he started consulting with Chevron how long 

after he left the board? 

Mr. MOURE-ERASO. I believe he testified one year and a half after 

he left the board. 

Ms. SPEIER. No, when did he start consulting? 

48 

Mr. MOURE-ERASO. I don’t know when he started consulting. But 

when he identified himself as a consultant for Chevron during the 

hearing was one year and a half after he had left the agency. 

Ms. SPEIER. So do you have a revolving door policy? 

Mr. MOURE-ERASO. Absolutely not. I think there are regulations 

about that. 

Ms. SPEIER. Well, revolving door policy would mean that you do 

have regulations. I think you are getting assistance here. 

Mr. MOURE-ERASO. I am sorry, yes, yes. I misunderstood the 

question. Yes, of course. We have to fulfill the Federal regulations 

on this. 

Ms. SPEIER. So did he violate that? 

Mr. MOURE-ERASO. It is not for me to—— 

Ms. SPEIER. But you would have to—— 

Mr. MOURE-ERASO. Well, I lodged a complaint with Mr. Elkins, 

with the IG, and asked him if he considered that this was a violation. 

Ms. SPEIER. What interaction did Mr. Bresland have with board 

members or staff after he became a consultant for Chevron? 

Mr. MOURE-ERASO. I really don’t know. I only know about the 

testimony that he presented in which he identified as a consultant 

for Chevron. 

Ms. SPEIER. Do you believe that there was a conflict of interest 

there? 

Mr. MOURE-ERASO. I do believe it is a conflict of interest, yes. 

Ms. SPEIER. And what steps have you taken to address it? 

Mr. MOURE-ERASO. I called on the IG to investigate the situation. 

Ms. SPEIER. And has the IG investigated it, Mr. Elkins? 

Mr. MOURE-ERASO. I haven’t heard from them since I made the 

complaint. 

Ms. SPEIER. Mr. Elkins, can you respond to that? 

Mr. ELKINS. Yes, I can. We did receive the complaint; it is in 

process. Let me refer to Patrick Sullivan here, who is my head of 

investigations, to give you more detail. 

Mr. SULLIVAN. Yes. It is in my queue. It is scheduled to be investigated; we have not yet opened that or start to begin that investigation, but we will be looking into that matter. 

Ms. SPEIER. So where are we in terms of the Chevron investigation? 

Mr. MOURE-ERASO. Madam Congresswoman, the investigation 

we have divided into three chapters—— 

Ms. SPEIER. Just tell me where you are in it. This happened in 

August of—— 

Mr. MOURE-ERASO. We finished the first part and we voted on 

it and it was approved by the board. We presented the second part 

in which we are in a public meeting, and that was the one that was 

referred here that was delayed, and we are in the process of going 

to editing of the third part for the final report. But one is finished, 

one is waiting for a postponement of the vote, and the other is in 

a draft form. 

Ms. SPEIER. Let me just put this into perspective. The National 

Transportation Safety Board is an organization similar, larger than 

yours, with similar responsibilities. I think it is a first rate operation. There was a gas explosion in my district in 2010, killed eight 

49 

people, destroyed 50 homes, and the NTSB took the pipe, carted it 

here to DC, did the investigation, had a complete and comprehensive report done in one year, with a series of hearings open to the 

public previous to that. 

This happened in 2012. It is almost two years and you are nowhere near completing your work. I would suggest that that shows 

a lack of ability to do the job. 

I yield back. 

Mr. CHAFFETZ. [Presiding] Thank you. 

I now recognize myself for five minutes. 

Ms. Lerner, you have played such a critical role in our Government. We appreciate what you do and how you do it. I know you 

can’t speak specifically to what is happening here within the CSB, 

but can you give us an idea of the scope? For instance, how many 

complaints are you looking into at this point? 

Ms. LERNER. It is a little tough for you to give me that information. 

Mr. CHAFFETZ. I don’t want you to step over any lines, but I am 

trying to get an idea of how many and what types of complaints 

you are looking into. 

Ms. LERNER. I am very happy to tell you the types of complaints. 

They are all retaliation complaints. And there are at least several 

that are still unresolved. One settled a couple months ago. We are 

actively trying to resolve the remaining retaliation complaints. 

Mr. CHAFFETZ. Is it typical that Government officials need to be 

subpoenaed in order to secure their testimony in your job and what 

you need to do? 

Ms. LERNER. It is rare that OSC would have to issue a subpoena. 

Mr. CHAFFETZ. Why did you feel the need to have to issue a subpoena in this case? 

Ms. LERNER. We felt it was necessary to subpoena the CSB management official because, quite frankly, in light of the time that it 

was taking to produce documents and schedule the interviews in 

the case, the investigation was taking too long. 

Mr. CHAFFETZ. Okay. Thank you. 

Mr. Moure-Eraso, have you ever used your personal email for official business or communication? 

Mr. MOURE-ERASO. Well, yes, out of ignorance. At the beginning 

of my tenure, I used to write drafts of positions before I would put 

it as—— 

Mr. CHAFFETZ. When is the most recent time that you used your 

personal email? 

Mr. MOURE-ERASO. We stopped that practice about a year and a 

half ago because we realized how problematic it was. 

Mr. CHAFFETZ. So you had been in that position for more than 

two years before you realized that it was inappropriate. 

Mr. MOURE-ERASO. The board was telling me that I couldn’t use 

my private—— 

Mr. CHAFFETZ. Okay, thank you. Thank you. Can you tell me 

about Chris Warner? Who is Chris Warner? 

Mr. MOURE-ERASO. Chris Warner is the former general counsel 

of the Office of the Chemical Safety Board. 

Mr. CHAFFETZ. And did he remain as the general counsel? 

Mr. MOURE-ERASO. He retired. 

50 

Mr. CHAFFETZ. Did he have to take on a different responsibility 

under your tenure? 

Mr. MOURE-ERASO. Yes. He was transferred to a position of senior advisor to the chairperson. 

Mr. CHAFFETZ. Do you consider that a promotion or a demotion? 

Mr. MOURE-ERASO. It was a lateral change, I would consider it. 

Mr. CHAFFETZ. Why did you make that lateral change? 

Mr. MOURE-ERASO. I would be very glad to discuss this with you 

in a private manner. 

Mr. CHAFFETZ. No, we are going to do this in the public. We are 

not going to issue memos before we have—we are going to do this 

in public. 

Mr. MOURE-ERASO. The agreement that we have with the counsel 

for Mr. Warner is that I am not to discuss the issues of his settlement, and my own counsel tells me that I would be very glad to 

discuss all the details of his case, but not in public. I want to protect the privacy of Mr. Warner. 

Mr. CHAFFETZ. You suggest in your testimony that you are not 

aware of anybody who may have lost their job, grade, or pay, anything like that, and yet this case I would like to specifically know 

more about, and we will continue to pursue that. 

Mr. Sullivan, are you familiar with the situation with Mr. Warner? 

Mr. SULLIVAN. Yes, sir, I am. 

Mr. CHAFFETZ. How would you characterize it? 

Mr. SULLIVAN. Mr. Warner made a complaint to the Inspector 

General’s office and we investigated it, and part of his complaints 

are still part of our investigation. And as Mr. Elkins testified, we 

cannot resolve Mr. Warner’s complaints until we get access to the 

documents we requested. 

Mr. CHAFFETZ. When did you request those documents, and have 

you received those documents? 

Mr. SULLIVAN. No, sir. We requested them over a year ago and 

they were the subject of the seven day letter Mr. Elkins testified 

about. 

Mr. CHAFFETZ. Why have you not produced the documents requested? 

Mr. MOURE-ERASO. Well, under advice of counsel, they have—— 

Mr. CHAFFETZ. Whose counsel? 

Mr. MOURE-ERASO. The counsel of the Chemical Safety Board 

that we hired. Let me explain to you the situation. We have been 

requested by the IG, by the inspector general, a number of information, documents and information for this particular case. We have 

provided thousands of emails from board members to him. And 

there are 20 emails that is the agency correspondence with an outside lawyer that is representing the agency in this personnel matter, and under the advice of counsel they are claiming that turning 

over those 20 emails will compromise the attorney-client privilege 

of the agency and potentially create future liabilities for the Federal Government 

Mr. CHAFFETZ. How much money do you spend on outside counsel? 

Mr. MOURE-ERASO. On that outside counsel? I would have to get 

back to you; I cannot tell you. I don’t have the figure. 

51 

Mr. CHAFFETZ. And you will get that information to me by when? 

Mr. MOURE-ERASO. Whenever I can. 

Mr. CHAFFETZ. I know. I want a date. 

Mr. MOURE-ERASO. In a week? 

Mr. CHAFFETZ. Fair enough. 

My time has expired. I am going to continue with the second 

round and further explore this, but in deference of time here we 

will now recognize the gentleman from Arizona, Mr. Gosar, for five 

minutes. 

Mr. GOSAR. Thank you very much, Mr. Chairman. 

Dr. Eraso, did you agree with Ranking Member Cummings’ conversation with Ms. Rosenberg about how he hires people? He always hires up, makes him look good, empowers people to make decisions? Do you agree with that management philosophy? 

Mr. MOURE-ERASO. Yes, I do. 

Mr. GOSAR. Well, I find it odd, because you have had a number 

of board members and employees come forward that are 

marginalized when they disagree with you and senior staff. How do 

you think that affects the work ethic in that board? 

Mr. MOURE-ERASO. I disagree with staff members have been 

marginalized. 

Mr. GOSAR. I have been on a number of boards that this has occurred, that we have had senior staff trying to marginalize board 

members, and, to be honest with you, in three for three cases it has 

failed; it got them booted, by the way, senior staff. You know, when 

everybody else is wrong and there is one person that is constantly 

the part of the problem, don’t you think that person is the problem? 

Mr. MOURE-ERASO. It might be, yes. 

Mr. GOSAR. If you were sitting outside this room, watching this 

conversation, I keep hearing that there are constant employees and 

board members that constantly have the same criticism of senior 

staff and you, the chairman. Wouldn’t you start to be retrospective 

and introspective about how you do your job? 

Mr. MOURE-ERASO. Yes. I mean, I don’t claim that the operations 

of the board are perfect. We do have problems, we do have issues 

that require study and remedy, and we are engaged in trying to 

improve our working environment. I am not claiming that the situation on the board is absolutely perfect. We have problems and we 

are addressing them. 

Mr. GOSAR. So when you address those problems, do you address 

them from your viewpoint or do you take a retrospective aspect and 

ask the opinions of others, particularly at different levels? 

Mr. MOURE-ERASO. I absolutely ask for the opinions of others. As 

a matter of fact, we organized a committee that is freely chosen 

among the staff, they chose themselves, that is called the Work Improvement Committee. As I said, a management consultant was assigned to them to diagnose the problems that we have on agency 

communications and management, and to propose solutions to deal 

with the situation. 

Mr. GOSAR. Well, a good start is humility from a chairman or 

senior staff. I mean, humility is something phenomenal. You made 

mention that you are human. Did you actively engage, from your 

chairmanship, with staff and with board members trying to solicit 

solutions from their standpoint and how you could better that? 

52 

Mr. MOURE-ERASO. Absolutely we have. I mean, at this moment, 

that is the process that is taking place. 

Mr. GOSAR. Did you actively listen? I mean, I am a dentist by 

trade, by profession, so I can start pulling teeth without talking to 

the patient. I could probably get the right tooth right, but I could 

streamline the process if I ask what hurts, how can I help you, and 

start a fundamental diagnosis. It is called active listening. Do you 

entertain that? 

Mr. MOURE-ERASO. Absolutely. As a matter of fact, we did with 

the help of a mediator. I met separate with the board, we called 

it like a marriage counselor, to try to help us to find ways of improving our communication and our way of working. We have a 

couple of meetings to that and we still have this person engaged, 

as well as separately with the staff with this Work Improvement 

Committee in which we basically listen how did they diagnose what 

are the problems and try to—— 

Mr. GOSAR. I am short on time here. Looking at all the questions 

that both sides of the aisle have actually entertained with you and 

the conversation I am having with you, do you think you are kind 

of the problem here? 

Mr. MOURE-ERASO. I think that we have problems in the agency 

and I think we are working on them. 

Mr. GOSAR. I know we. It starts with I. 

Mr. MOURE-ERASO. Well, I am not perfect. I am not claiming that 

I am perfect. I am basically fulfilling my responsibilities the best 

I can and I think—— 

Mr. GOSAR. Well, it seems like you are not, because you have an 

inspector general that—seven day letters are kind of an unusual 

aspect. I mean, you get that point, right? 

Mr. MOURE-ERASO. Yes. 

Mr. GOSAR. Seven day letters are not the usual thing here. 

Mr. MOURE-ERASO. I would like to note that that seven day letter 

doesn’t have anything to do with the mission of the agency, an obscure legal point that is being discussed that IG and the lawyers 

could deal with. 

Mr. GOSAR. Well, it is part of your performance, sir. I mean, you 

are the chairman and you have oversight of not only the board, but 

of staff to comply with the rule of law. Are you above the law? 

Mr. MOURE-ERASO. Absolutely not. And I am doing my best 

to—— 

Mr. GOSAR. Then why don’t you comply? 

Mr. MOURE-ERASO. I am following the advice of counsel that is 

trying to resolve this problem in the best interest of the agency and 

the Federal Government. 

Mr. GOSAR. You also have the due diligence to understand the 

law. Maybe you are getting very bad legal advice. I mean, it goes 

about in Washington, DC. We have a lot of problems with legal advice. 

I will yield back. Thank you, Mr. Chairman. 

Mr. CHAFFETZ. I thank the gentleman from Arizona. 

I now recognize the ranking member, Mr. Cummings. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I hope we 

can all agree that the Chemical Safety Board plays a very important role in investigating chemical accidents and helping to prevent 

53 

similar accidents from harming workers, the public, and the environment; and this discussion certainly should cause all of us to be 

concerned as to whether this is being done to the maximum extent 

possible under the circumstances. 

I understand that in order to accomplish this important mission 

the Chemical Safety Board relies on the hard work and dedication 

of a small staff of just over 40 personnel, including engineers, industry safety experts, and other specialists. I am, therefore, very 

concerned to hear reports that the Chemical Safety Board has experienced some departures of its investigation staff reportedly over 

the last couple years. For instance, Board Member Mark Griffin, 

who could not be here with us today, states in his written remarks 

that ‘‘In the last three and a half years, many experiences investigators have left the agency.’’ 

Dr. Rosenberg, recognizing that you were a board member for 

nearly one and a half years, did you also observe that experienced 

investigators were leaving the agency? 

Ms. ROSENBERG. One just left three days ago. But before then I 

wasn’t there when the exodus was happening. 

Mr. CUMMINGS. All right. Were you finished? 

Ms. ROSENBERG. But I just know that a senior investigator left 

three days ago. 

Mr. CUMMINGS. The staff report released by the committee majority states that, ‘‘The attrition at CSB began in 2011, shortly 

after Chair Moure-Eraso took over as chairman.’’ I want to explore 

this statement because I understand that this committee heard 

from former investigators that turnover was a challenge even before Dr. Moure-Eraso became chairman in 2012. 

Inspector General Elkins, your agency looked into the issue of 

staff retention at the Chemical Safety Board and issued a report 

in July 2013, is that correct? 

Mr. ELKINS. Yes, sir, that is correct. 

Mr. CUMMINGS. In fact, your report found that the investigator 

turnover rate was 19 percent in fiscal year 2008 and 20 percent in 

fiscal year 2009, is that correct? 

Mr. ELKINS. That is also correct, sir. 

Mr. CUMMINGS. Well, let me ask you this, Mr. Elkins. Does that 

seem high or average? Do you have any idea? 

Mr. ELKINS. No, sir, I really don’t have any idea. I can tell you 

that over the five year period that we looked at, the average turnover rate was 15 percent. 

Mr. CUMMINGS. Okay. 

Chairman Moure-Eraso, regardless of whether it preceded you or 

not, if the turnover is still a challenge, it should be addressed. In 

the July 2013 report, Inspector General Elkins recommended that 

the Chemical Safety Board ‘‘develop and implement a succession or 

retention policy to help with any future effects of the turnover rate 

on CSB’s mission.’’ Mr. Chairman, have you implemented this recommendation? 

Mr. MOURE-ERASO. Yes, Mr. Cummings, we have programs to 

educate employees, especially investigators, when they are coming 

into the agency. We assign senior investigators to work with junior 

investigators so that they can understand and can work together. 

We have programs of training in which we bring people from the 

54 

outside to work with our staff, and we have open lines of communication between the head investigators and the investigators when 

they start doing their work. So we have addressed that. 

I also would like to add that we disagree with the figures of attrition of the IG, and in our report, when we respond to that report 

that you are reading, we have a different number and rate of attrition that is comparable to any rate of attrition of any other Government agency. 

Mr. CUMMINGS. Do you have any comment on that, Mr. Elkins? 

Mr. ELKINS. Yes, sir, I do. The work that we do is done under 

strict standards. We take a look at the facts, we take a look at the 

data. We don’t try to rush to judgment. The facts that we have support the data that I presented to you, so I disagree with the chair’s 

assertions. 

Mr. CUMMINGS. Just one last question. Mr. Chairman, Board 

Member Griffin recommends in his written testimony that the 

board ‘‘develop a long-term hiring plan.’’ Do you intend to follow 

this recommendation? If not, why not? 

Mr. MOURE-ERASO. Mr. Cummings, we are waiting for the work 

of our management consultant in all these issues. This is one of the 

issues that we are considering, is how to project for the future and 

how to have long-term solutions to problems that have been identified during the years. 

Mr. CUMMINGS. All right, thank you very much. 

Mr. CHAFFETZ. Thank you. 

We will now recognize Chairman Issa. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. Elkins, you have a little gray hair. 

Mr. ELKINS. Yes, sir, I do. 

Mr. ISSA. This is the only time you have pulled a seven day rip 

cord? 

Mr. ELKINS. In my tenure, yes, sir. 

Mr. ISSA. So have you ever been stymied like this in an investigation, stonewalled in the way that you have been stonewalled 

here before? 

Mr. ELKINS. No, sir, I can’t say that I have. You know, we have 

instances in the past where we have run into some obstacles, but 

we have been able to dialogue and work through those obstacles 

short of issuing a seven day letter. But this is the first time that 

we have been stonewalled to the point where this was our only option. 

Mr. ISSA. Now, the use of words like stonewall very typically indicate that, in your opinion, these are not just or valid objections 

or withholdings, is that correct? 

Mr. ELKINS. That is absolutely correct. 

Mr. ISSA. Mr. Sullivan, you do a lot of investigations; you are 

good at what you do. Have you seen anything like this before? 

Mr. SULLIVAN. No, sir. This is my first experience where there 

has been an absolute complete refusal to provide requested documents. 

Mr. ISSA. Ms. Lerner, you are from an office that the entire public is always clamoring about special this, special that. I recently 

have been asking for special prosecutors in a number of areas and 

so on. But you are a sustaining organization that does these kinds 

55 

of investigations, rarely on Government, if you look at the size of 

Government. Have you ever seen anything quite like this before? 

Ms. LERNER. It is very rare for an agency to assert attorney-client privilege to protect documents from the Office of Special Counsel, another Federal agency. And for context I can tell you that it 

is also very rare for OSC to have to subpoena a subject official in 

order to secure testimony. In the three years that I have been head 

of the Office of Special Counsel, this is the first time. 

Mr. ISSA. Well, let me follow up on that a little bit. You are an 

attorney. You are very familiar with privilege logs. Is there anything in your experience that can be so privileged as to not have 

a privilege log? 

Ms. LERNER. Not that I am aware of. I have never heard of not 

getting a privilege log. 

Mr. ISSA. So the claim of privilege falls completely apart if you 

are not willing to cite, document-by-document or at least catalogby-catalog, what the privilege is, is that correct? 

Ms. LERNER. In private litigation a court would never allow an 

assertion of attorney-client privilege without a privilege log, and it 

is very important for agencies like mine to get that information. If 

an agency can assert attorney-client privilege to protect the basis, 

for example, of removing someone, we are not able to get a full picture and determine if there was animus for whistleblowing, what 

the true factors really were for taking an action against an employee. If we ask why a decision was made and the answer is I 

can’t tell you because I asked my lawyer or outside counsel about 

it, then that is just not very helpful to us. 

Mr. ISSA. Now, the agency employs outside counsel even though 

they have an in-house counsel, is that correct? 

Ms. LERNER. I am aware that they have hired outside counsel. 

Mr. ISSA. And in-house counsel does not have an expectation, 

normally, of attorney-privilege, isn’t that; they are Government 

workers working for a Government entity and they don’t normally 

have attorney-client privilege from the Government. I just want to 

say that rather confusing thing to hopefully get a yes. 

Ms. LERNER. Yes. I will just also add that it does occasionally 

happen, and we have actually, as an agency, provided language to 

the Senate Governmental Affairs Committee on this very specific 

issue. We thought it was necessary to clarify the Office of Special 

Counsel’s right to receive information because it really does impact 

our ability to conduct impartial investigations. And this case was 

sort of the impetus for asking for that language. 

Mr. ISSA. Now, from my time in the outside world in both civil 

and criminal cases, when the privilege is claimed, an in camera review is often the case; in other words, the judge shall decide whether or not the privilege claimed is appropriate, is that right? 

Ms. LERNER. Yes, that is right. 

Mr. ISSA. Where do you go to get that kind of justice in this case? 

Ms. LERNER. Well, it is tough as an administrative agency. Technically, I suppose we could go to the Department of Justice to ask 

them to enforce a subpoena for information for us, but it is rare, 

and it is my approach to try and resolve things informally and to 

find a way to resolve matters like this without having to go to 

those extremes. 

56 

Mr. ISSA. I just have two quick last questions, Mr. Chairman. 

What is the first date in which you believe that this was asserted? In other words, how long have you been trying to resolve 

this with the chairman? 

Ms. LERNER. I am sorry, that was addressed to me? 

Mr. ISSA. Yes. It can also be addressed to Mr. Elkins, too. 

Ms. LERNER. I don’t know the exact amount of time. I think as 

my testimony mentioned, we have been trying for a long time to 

get these documents. We still haven’t gotten either a privilege log 

or the documents, and we don’t know what we don’t have. 

Mr. ISSA. Right. And I guess I will ask it this way. Any time you 

go more than a few weeks in negotiations, as Mr. Elkins said earlier, you have stonewalling; you are not really progressing, you simply have a party that is intransigent and isn’t going to provide that 

which they are ordinarily supposed to do in their role on behalf of 

the taxpayers. 

Ms. LERNER. I would generally agree with what you just said. 

Mr. ISSA. And you have reached that point, haven’t you? 

Ms. LERNER. Pretty much. 

Mr. ISSA. Mr. Elkins, you have reached that point? 

Mr. ELKINS. Absolutely. 

Ms. LERNER. My counsel has just reminded me that this isn’t the 

only subpoena that we have issued, but it is certainly one of only 

maybe a couple inside Special Counsel. 

Mr. ISSA. Dr. Rosenberg, I know you are no longer there, but are 

these the kinds of documents that you would routinely be allowed 

to see if you asked to see them? 

Dr. ROSENBERG. We didn’t even know this was happening until 

we learned about it in the press, so, no, I am sure—— 

Mr. ISSA. So the board wasn’t consulted? 

Dr. ROSENBERG. About what to do. 

Mr. ISSA. Right. And the board would not have been normally 

provided with documents that allow you to understand the legitimacy of the action. 

Dr. ROSENBERG. We were marginalized from the whole affair, 

and I don’t know what would have happened had we asked to see 

the documents. 

Mr. ISSA. Doctor, I am going to close very simply. I believe there 

has been a strong case made in our investigation, a strong case 

made here today, and I think Mr. Connolly made a strong case in 

his discussion with you. You have failed in your requirement to be 

a chief executive. You failed in your requirement to be a board 

leader. You failed in your requirement to hire people who faithfully 

do the job in the way expected of an independent agency. 

You have failed to deliver the kind of results in the way of timely 

resolution of your basic charter, which is to do these investigations 

and bring them to conclusion in a way in which industry and the 

American people know that the changes, so it doesn’t happen 

again, are continuing. Six and a half years to close something out, 

four years to close something out, that is four years of vulnerability 

on whatever caused these horrific incidents to occur. 

Therefore, I personally will do something I don’t do. I don’t do 

it with cabinet officers, I don’t do it regularly. But I really believe 

57 

it is time you go, that you really need to ask whether or not, in 

your last year, you can actually undo the damage of your first five. 

I thank the chairman and ranking member for their indulgence 

and yield back. 

Mr. CHAFFETZ. I thank the chairman. 

I will now recognize myself for five minutes. 

Mr. Moure-Eraso, how many people work for you? 

Mr. MOURE-ERASO. I think the agency right now has 40 people. 

Mr. CHAFFETZ. And do you recall during that time how many 

people have left or been asked to leave or departed? 

Mr. MOURE-ERASO. Nobody has been asked to leave. Some people 

have transferred out and they have been replaced with new hires. 

Mr. CHAFFETZ. Did you ever have a conversation with Chris Warner and ask him to leave? 

Mr. MOURE-ERASO. I did. I—— 

Mr. CHAFFETZ. You did or did not? 

Mr. MOURE-ERASO. One year after I started my chairmanship, I 

had a discussion with him to that effect. 

Mr. CHAFFETZ. So you just testified that you never asked anybody to leave, and I asked you about Chris Warner and you did ask 

him to leave. 

Mr. MOURE-ERASO. Yeah, and he said that he will not leave, so 

I accepted it. 

Mr. CHAFFETZ. Then why did you just tell me that you have 

never asked anybody to leave? 

Mr. MOURE-ERASO. Well, I did have this conversation with Mr. 

Warner at the beginning. We had a lot of differences on the way 

that the agency should be run and we were not able to see eye-toeye on how he could be my general counsel, and I thought I asked 

him to resign, and he said that he wasn’t going to resign, and that 

was the end of the matter. 

Mr. CHAFFETZ. Why did you just tell me that you never asked 

anybody to leave? 

Mr. MOURE-ERASO. Probably I misspoke. Yes, we had that interchange with Mr. Warner. 

Mr. CHAFFETZ. How convenient. We see a lot of that. So what did 

you do with him? You changed his job, didn’t you? 

Mr. MOURE-ERASO. No. 

Mr. CHAFFETZ. You didn’t change his job? 

Mr. MOURE-ERASO. I tried to do my best to see if we were able 

to work together and—— 

Mr. CHAFFETZ. Did you or did you not change his job? 

Mr. MOURE-ERASO. Eventually I did, when we were unsuccessful 

to work together. 

Mr. CHAFFETZ. Well, why did you just tell me you didn’t change 

his job? I just asked you did you change his job, and you said no. 

And then I asked you again and you now say yes. 

Mr. MOURE-ERASO. I transferred him from one position to another, yes. 

Mr. CHAFFETZ. What is that new position? 

Mr. MOURE-ERASO. I told you before—— 

Mr. CHAFFETZ. Was it a demotion? 

Mr. MOURE-ERASO. It wasn’t, it was a lateral transfer. 

58 

Mr. CHAFFETZ. What was he doing, was he working on FOIA requests? 

Mr. MOURE-ERASO. Not only that, he was an ethics officer, which 

is a very important position in the agency. 

Mr. CHAFFETZ. So he went from general counsel to working on 

FOIA and ethics, and you think that is a lateral move? 

Mr. MOURE-ERASO. And any other issues of senior legal interest 

that I could require from him. 

Mr. CHAFFETZ. So anything at your discretion. But he is no 

longer general counsel. How can you possibly justify that as a lateral move? 

Mr. MOURE-ERASO. He didn’t lose his title or his status—— 

Mr. CHAFFETZ. Yes he did lose—— 

Mr. MOURE-ERASO.—or his salary. 

Mr. CHAFFETZ. You are saying that he did not lose his title? He 

was still called the general counsel? 

Mr. MOURE-ERASO. No. He started as SES. 

Mr. CHAFFETZ. Sir, every time I have asked you a question, you 

have changed your answer when I ask you a second time. 

Mr. MOURE-ERASO. What I am referring to is his character of 

SES didn’t change. 

Mr. CHAFFETZ. His what? 

Mr. MOURE-ERASO. SES. He was a Senior Executive Service of 

the Government. He remained as a Senior Executive Service of the 

Government. 

Mr. CHAFFETZ. But you did change his title. You did ask somebody to leave. You did do all of those things. 

Mr. MOURE-ERASO. According to the U.S. Code, I have the right 

to transfer people in the Senior Executive Service from one position 

to another. 

Mr. CHAFFETZ. Mr. Elkins, Mr. Sullivan, can you add or illuminate anything to this discussion that we have had over the last 

four minutes? 

Mr. SULLIVAN. Mr. Warner has made numerous complaints about 

his treatment and we have spoken to Mr. Warner many, many 

times; and it is part of our ongoing investigation and we are very 

hopeful to be able to get the documents that will shed a lot more 

light on this issue. 

Mr. CHAFFETZ. Why, again, are you holding back those documents, Mr. Chairman? They have the law on their side, the authority to see these documents. Why will you not share those documents with them? 

Mr. MOURE-ERASO. I have shared thousands of documents. 

Mr. CHAFFETZ. No, I want all of them. It is a percentage. What 

percent—— 

Mr. MOURE-ERASO. The only ones that we are not sharing is the 

ones dealing with this attorney-client privilege that have been 

mentioned by my—— 

Mr. CHAFFETZ. Because you went and spent taxpayer money to 

get an outside counsel. You already had inside counsel; you didn’t 

have to use that. This is something we will bring you back up here 

again if we need to. The chairman has already said if he has to 

issue subpoenas, we will do that. It is just absolutely stunning to 

59 

me, because every single time we ask you a question we get a different answer. Do you think you have done anything wrong? 

Mr. MOURE-ERASO. I regret that I did some things the way I did. 

I don’t think that I have done everything perfect. 

Mr. CHAFFETZ. What would you do differently? 

Mr. MOURE-ERASO. Probably I would have tried to get my own 

team from the very beginning and make it clear that it was not 

possible to work with people that wanted, in my experience, to 

make more difficult the functions of the board and to work to accomplish the mission of the board. 

Mr. CHAFFETZ. How many recommendations has the inspector 

general given you? 

Mr. MOURE-ERASO. Probably hundreds. 

Mr. CHAFFETZ. Hundreds? 

Mr. MOURE-ERASO. Yes. 

Mr. CHAFFETZ. You have a department of 40 people, and under 

your tenure they have given you hundreds of recommendations? 

How many have you implemented? 

Mr. MOURE-ERASO. My counsel says that there are a few that— 

I am sorry, I misspoke. 

Mr. CHAFFETZ. And you lead this organization. 

Mr. MOURE-ERASO. Yes, I do. 

Mr. CHAFFETZ. How many of them have you actually implemented? 

Mr. MOURE-ERASO. We have responded to each one of them and 

we have told the inspector general how we plan to, when we agree 

with their recommendation, how we plan to act on them and 

how—— 

Mr. CHAFFETZ. Okay, so how many do you agree with and how 

many do you disagree with? 

Mr. MOURE-ERASO. I cannot give you a figure right now. 

Mr. CHAFFETZ. Well, that is obvious. 

Mr. Elkins, shed some light on the reality from your perspective. 

Mr. ELKINS. Yes, sir. I would be glad to. During the administration of Dr. Moure-Eraso, we have issued 19 recommendations. My 

records show that 11 are open, 4 remain unresolved, so what we 

have is 15 out of 19 with no corrective actions being taken. Not 

only that, but OMB has issued a 50 guidance in terms of what happens when you cannot reach agreement; it goes to what is called 

audit resolution. There is no audit resolution process within the 

CSB, so, therefore, when we get to a point of impasse, with CSB 

there is no where to go. 

Mr. CHAFFETZ. Why is there no audit resolution process, chairman? 

Mr. MOURE-ERASO. I don’t know the answer to that question. 

Mr. CHAFFETZ. And you lead this organization. 

Mr. MOURE-ERASO. Yes, I do. 

Mr. CHAFFETZ. Your inability to manage what is a relatively 

small group of people to deal with—the amount of money and time 

and expertise that the inspector general comes in and offers should 

be viewed as a benefit; and yet you very cavalierly have no idea 

how many they have done, you have no plans to implement them, 

the majority of them you haven’t implemented, there is no resolution in order to solve those problems. And if you are going to need 

60 

Congress to come in and legislate how you are going to do this, you 

are not going to like the result. 

Mr. MOURE-ERASO. I would like to say that we have responded 

to each and every one of the recommendations and we have agreed 

with some and we have disagreed with others. 

Mr. CHAFFETZ. In your budget request, what did you do with the 

oversight function, did you zero it out? 

Mr. MOURE-ERASO. I have to review that. I cannot tell you from 

the top of my head what did I do with some item in my budget. 

Mr. CHAFFETZ. Let’s do this as we wrap up. 

Dr. Gosar, do you have an additional set of questions? 

Let’s do this, let’s recognize Dr. Gosar for five minutes. 

Mr. GOSAR. Thank you. 

Dr. Rosenberg, with your background, you sat on a number of 

boards, I take it? 

Ms. ROSENBERG. Actually not. 

Mr. GOSAR. Really? 

Ms. ROSENBERG. No. 

Mr. GOSAR. But have you sat on anything privately as well? 

Ms. ROSENBERG. No. I have actually just been an academic and 

I have been to many conferences and am a member of the IPHA, 

but I have never worked on a board before. 

Mr. GOSAR. How do you run your classroom? You go to training 

where you gather with colleagues, right? 

Ms. ROSENBERG. Mm-hmm. 

Mr. GOSAR. And do you discuss new theories and technical aspects? 

Ms. ROSENBERG. I have been a member of the faculty at my department at Tufts for 16 years, and I will go back there in September. 

Mr. GOSAR. So you have been aware of inner jurisdictional aspects, working with multidiscipline aspects. 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. Have you not? 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. Let’s take that comparison and compare it to what 

you saw on this board. Mr. Cummings made a comment to always 

hire up, empower people to be part of the solution process, and one 

of the mission statements of this board is to look at these chemical 

spills, right? 

Ms. ROSENBERG. Right. 

Mr. GOSAR. And there seems to be a problem of long and long 

and long and long to just not resolving any of these things, taking 

longer and longer. Would you agree? 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. As a board member, were you made aware of all the 

different things that were being presented to your safety board to 

be reviewed? 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. Was there a plan to orchestrate that? 

Ms. ROSENBERG. We were presented with investigations, but we 

weren’t presented with a plan to complete the investigation. 

Mr. GOSAR. It seems to me, in logical aspects here, I don’t think 

you have to sit on many boards to understand that when you are 

61 

given a jurisdiction, here is the task that we are at and we are trying to accomplish these; and the plan should be that we get a proper jurisdiction, but empowering people to be part of that solution 

so that we can get through that. Would that be agreement? 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. So you come with a different set of skill sets. Board 

members are all not clones, right? 

Ms. ROSENBERG. Right. 

Mr. GOSAR. Okay, so you would like to have that free flow. You 

had made the comment the free flow of information, right? And 

that is also a good free flow of information from staff, right? 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. Did you have conversations with staff that felt that 

they were impugned or restricted in the free flow of information? 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. And did they fear retaliation? 

Ms. ROSENBERG. Yes. They were told, yes. Many staff members 

said they felt very fearful about disagreeing with their supervisors 

for fear of retaliation. 

Mr. GOSAR. So if we were to work out a plan to look at all the 

resources that the board has, don’t you think that could expediate 

some of the resolution of some of these issues that we have, the 

backlog? Do you think we could speed up the backlog if we empowered people to be part of the solution and they didn’t fear retaliation? 

Ms. ROSENBERG. I think, yes, the return of trust is necessary in 

order to rebuild the board, and part of that would be respecting the 

board orders as outlined in the Moss opinion. But also the culture 

of the place has to change, and that is a more difficult thing to do. 

Mr. GOSAR. Well, but you serve the general public, right? 

Ms. ROSENBERG. Yes. 

Mr. GOSAR. I am a health professional, so you want to be on top 

of these so you don’t repeat a historical disaster, right? 

Ms. ROSENBERG. Right. 

Mr. GOSAR. So a normal person that is in leadership would 

reprioritize, right? 

Ms. ROSENBERG. I just must add Dr. Moure-Eraso is completely 

committed to worker safety and health, and actually everyone in 

the agency is. So it is not about commitment to the mission. 

Mr. GOSAR. No, no, no, no. 

Ms. ROSENBERG. It is about management styles that—— 

Mr. GOSAR. Well, and that is what the point is. The chairman 

has brought up over and over again some people are good at leadership, some people are not. Some people can acknowledge their 

weaknesses, some cannot. We seem to be having this problem in 

this hearing today; somebody not looking at I instead of we. It is 

I. I agree with the chairman, it is time for the chairman to go. We 

have a service to the public to expediate the claims, to uphold the 

rule of law, and to make sure that we have an open dialogue so 

we don’t repeat the historical problems from the past, and I think 

that takes multiple eyesights. 

This isn’t just focused just right here. I have been on a number 

of boards, as I said earlier, where I was trying to be marginalized. 

I didn’t go away. So I am glad you are back here speaking, okay, 

62 

because that is how we make a difference. And I think there were 

laws put in place for whistleblowers to come forward and to have 

those protections, and those are serious offenses when we do not 

protect whistleblowers, because we are seeing that type of debilitating aspect not just in this board, but throughout our justice system here. So I want to compliment you for coming forward. And I 

would hope that those employees would still stay with it. We need 

to make sure that the public is protected and that there are solutions at the table. So thank you very much for your willingness to 

come forward. 

Thank you, I yield back. 

Mr. CHAFFETZ. I thank the gentleman from Arizona. He has true 

passion and caring for this, so I appreciate his being here and participating with us. 

Chairman, you said you disagree with the IG about the turnover 

numbers. Could you share with us those numbers and why you disagree with them? I am asking you as a follow-up, not right here. 

Mr. MOURE-ERASO. Yes. I could provide you with a document in 

response. 

Mr. CHAFFETZ. When could you provide that? 

Mr. MOURE-ERASO. Tomorrow, if you want to. To give you an 

idea of the situation, we disagree with Mr. Elkins’ evaluation. He 

counted as one of the persons part of the people we lost one of our 

investigations that died on the job, and he considered that that person has left the agency, as one of the persons that has left the 

agency voluntarily, and we disagree with him on that. 

Mr. CHAFFETZ. Well, I want you to just articulate that out. Take 

a week. I appreciate the quick response. If you could provide to the 

committee, we would appreciate it. 

Mr. MOURE-ERASO. I would like to add that there is a documentation. Mr. Elkins published his recommendations with our responses one-to-one, and all the responses are there, and I would be 

very glad to provide you with that document. 

Mr. CHAFFETZ. That would be great. If you have additional information, we would love to receive it. 

I would like to go from my left to right, starting with you, chairman. The question is what do you think is wrong and what do we 

need to do to fix it. And I am going to ask each of you to please 

comment on that. 

Go ahead. 

Mr. MOURE-ERASO. I think that the principal problem with the 

Chemical Safety Board is that we are a very small agency that is 

given an incredible amount of work to do. We have really very little 

resources for the mission that has been given to us; we have a very 

small staff for the mission. But in spite of that we have produced 

top-notch, landmark issues in our reports and our recommendations that we have done to the chemical industry. 

I do recognize that our operation is not perfect and that we are 

having some problems of management in the agency, and I read 

very carefully the recommendations of Congressman Waxman that 

has looked at the situation and has made some specific recommendations to us, and we are working on those recommendations to improve the situation on the board. 

Mr. CHAFFETZ. Mr. Elkins. 

63 

Mr. ELKINS. Yes, thank you. My observation is this: in our direct 

dealings with this seven day letter and the issues underlying that, 

the message that comes across is that the CSB’s leadership is 

above the law. They do not feel that they have to comply, in my 

particular case, with the IG Act. To allow that to go on takes the 

IG Act and turns it on its head. To allow an agency to decide, well, 

we will comply with this piece, but we won’t comply with that piece 

totally undermines the IG Act. That, obviously, cannot stand. 

Also what we have here is they seem to be doing this as a rules 

on the fly sort of method. You know, they kind of make things up. 

It is attorney-client privilege today; it is something else tomorrow. 

That just cannot stand. 

So those are my observations. 

Mr. CHAFFETZ. Thank you. 

Mr. Sullivan? 

Mr. SULLIVAN. Yes, Mr. Chairman. The overriding feedback we 

have received is fear from the employees; fear of what is going on 

in the agency, concern. And from my perspective of my investigators, we have been stymied, we have been stonewalled, we have not 

received the documents we need. We can’t rush to judgment. Everyone is considered innocent unless and until proven guilty, and 

these documents that we are requesting we absolutely have to be 

able to analyze them and examine them ourselves, because they 

will give us the way ahead. 

Mr. CHAFFETZ. Thank you. 

Ms. Lerner? 

Ms. LERNER. The Office of Special Counsel encourages all agencies to send a message from the very top about embracing whistleblowers. Let me give you an example of one agency that is doing 

what needs to be done. Acting Secretary Gibson at the VA, in response to our letting him know about the high number of retaliation complaints that we were getting from VA employees, he sent 

a letter to all of the workforce, all VA employees, making clear that 

whistleblowers are valued, that they are important for the VA to 

find out what the problems are, and that retaliation against whistleblowers will not be tolerated. That was sent from the head of the 

department to every employee at the VA. That is a model response 

to complaints of retaliation. 

The Whistleblower Protection Act requires agencies to educate its 

employees about their rights to disclose information about waste, 

fraud, and abuse, or health or safety issues; they are supposed to 

let employees know that they can come to the Office of Special 

Counsel, they can go to the IG, they can come to Congress without 

any fear of retaliation. 

If I were going to counsel anyone about how to improve an agency, it would be to take the steps that are outlined under the Whistleblower Protection Enhancement Act. Also my agency has a certification program that agencies can follow; it is a very simple program that includes informing employees about their rights and taking very simple steps like putting a link to our agency on their 

website. So that would be my advice. 

Mr. CHAFFETZ. Thank you. 

Dr. Rosenberg? 

64 

Ms. ROSENBERG. I have a number of things. I so appreciated Mr. 

Waxman’s efforts and the efforts of his wonderful staff to give us 

recommendations on how to improve the agency. I think his recommendations are very good, but they don’t go far enough. They 

mostly recommended trying to establish a more collegial environment and to keep board members in the loop. But I think that 

needs to be codified so that board members can’t be marginalized. 

I think we need a way to resolve professional disputes. We need 

the chair to recognize the authority of the board by recognizing 

board orders. We need public business meetings to be accountable 

to the public, deliberative Sunshine Act meetings. We can’t have 

the chair have the ability to calendar or table a matter of importance to put a matter that he doesn’t feel like dealing with on the 

table indefinitely. That is a legislative change that we need because 

it produces some autocratic behavior. 

And I think the culture of the agency needs to be changed. I 

think the agency needs to be rebuilt. I think senior leadership 

needs either retraining or I am going to let you decide what needs 

to be done. And I think that the agency needs to heal and that restoring trust memo that was released to the press three days ago 

shows that—I don’t think there is a sincere interest in doing that. 

Mr. CHAFFETZ. Well, thank you. I appreciate it. Dr. Rosenberg, 

thank you for your service. I know that that service was a bit sour, 

but for whatever reason your participation here, your willingness 

to speak publicly about this is very much appreciated; it is part of 

solving the problem. I frequently say what differentiates the 

United States of America from most countries is we are self-critical, and you do that in the spirit of making things better. So I appreciate your willingness. I know it is not necessarily the most 

pleasant thing to do, but it is part of the process to fix what is 

clearly wrong and going the wrong direction. 

We will continue to pursue this. I appreciate the tenacity of 

Chairman Issa on this and Mr. Cummings to get to the bottom of 

this. This is not the end of this; there will be much more to come, 

and it is unfortunate. 

I think to the Obama Administration I would suggest there is a 

way to solve this; if they would show some leadership and get their 

fingernails dirty and get in the middle of what is clearly a management problem. I think several people have cited that most of that 

management problem resides in one particular situation. 

To the men and women who are serving, they serve their Nation, 

they have families, they have loved ones. I am sure they are all patriotic. They do important work that is critical to our Country. Bear 

with us. Hang in there. Things may be difficult, but I hope this is 

a sign that things will be rooted out, truth will surface; maybe the 

hard way, but truth is going to surface and we will help solve this 

problem. I think we can do it in conjunction with the White House 

if the White House will show some leadership, too, on this issue. 

But the Congress will continue to pursue this. But we could dismiss this sooner, rather than later, if we do it hand-in-glove with 

the White house. 

Again, to those men and women who have gone through tough 

things, they may have left that agency, they may be there now, I 

65 

thank them for their service to their Country, the tough work that 

they do. We want to get to the truth and we want to make it right. 

With that, this committee stands adjourned. 

[Whereupon, at 12:20 p.m., the committee was adjourned.] 

(67) 

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