[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
  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




                  U.S. GOVERNMENT PRINTING OFFICE
88-827                    WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001


              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee       CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona               GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania         JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee          MATTHEW A. CARTWRIGHT, 
TREY GOWDY, South Carolina               Pennsylvania
BLAKE FARENTHOLD, Texas              TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington             ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming           DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia                 PETER WELCH, Vermont
THOMAS MASSIE, Kentucky              TONY CARDENAS, California
DOUG COLLINS, Georgia                STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina         MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan        Vacancy
RON DeSANTIS, Florida

                   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


                            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


  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.
    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 
disregard 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 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.
    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?
    [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 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:]
    [GRAPHIC] [TIFF OMITTED] T8827.001
    
    [GRAPHIC] [TIFF OMITTED] T8827.002
    
    [GRAPHIC] [TIFF OMITTED] T8827.003
    
    [GRAPHIC] [TIFF OMITTED] T8827.004
    
    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 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:]
    [GRAPHIC] [TIFF OMITTED] T8827.005
    
    [GRAPHIC] [TIFF OMITTED] T8827.006
    
    [GRAPHIC] [TIFF OMITTED] T8827.007
    
    [GRAPHIC] [TIFF OMITTED] T8827.008
    
    [GRAPHIC] [TIFF OMITTED] T8827.009
    
    [GRAPHIC] [TIFF OMITTED] T8827.010
    
    [GRAPHIC] [TIFF OMITTED] T8827.011
    
    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.
    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:]
    [GRAPHIC] [TIFF OMITTED] T8827.012
    
    [GRAPHIC] [TIFF OMITTED] T8827.013
    
    [GRAPHIC] [TIFF OMITTED] T8827.014
    
    [GRAPHIC] [TIFF OMITTED] T8827.015
    
    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 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:]
    [GRAPHIC] [TIFF OMITTED] T8827.016
    
    [GRAPHIC] [TIFF OMITTED] T8827.017
    
    [GRAPHIC] [TIFF OMITTED] T8827.018
    
    [GRAPHIC] [TIFF OMITTED] T8827.019
    
    [GRAPHIC] [TIFF OMITTED] T8827.020
    
    [GRAPHIC] [TIFF OMITTED] T8827.021
    
    [GRAPHIC] [TIFF OMITTED] T8827.022
    
    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----
    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 one-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.
    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.
    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 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?
    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.
    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 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. Moure-Eraso. 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 reaction, 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.
    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 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?
    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 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.
    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.
    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?
    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 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 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 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 catalog-by-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.
    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 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-to-eye 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.
    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 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 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 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, 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.
    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?
    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 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.]


                                APPENDIX

                              ----------                              


               Material Submitted for the Hearing Record

[GRAPHIC] [TIFF OMITTED] 
                                 
