[Senate Hearing 114-26]
[From the U.S. Government Publishing Office]
S. Hrg. 114-26
HEARING ON THE NOMINATION OF
VANESSA SUTHERLAND TO BE A MEMBER AND CHAIRPERSON OF THE CHEMICAL
SAFETY BOARD
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 22, 2015
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana BARBARA BOXER, California
JOHN BARRASSO, Wyoming THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska
Ryan Jackson, Majority Staff Director
Bettina Poirier, Democratic Staff Director
C O N T E N T S
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Page
APRIL 22, 2015
OPENING STATEMENTS
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 2
Boxer, Hon. Barbara, U.S. Senator from the State of California... 3
Cardin, Hon. Benjamin L., U.S. Senator from the State of
Maryland, prepared statement................................... 33
WITNESS
Sutherland, Vanessa Allen, nominated to be a Member and
Chairperson of the Chemical Safety Board....................... 6
Prepared statement........................................... 8
Responses to additional questions from:......................
Senator Inhofe........................................... 12
Senator Markey and Senator Rounds........................ 23
HEARING ON THE NOMINATION OF VANESSA SUTHERLAND TO BE A MEMBER AND
CHAIRPERSON OF THE CHEMICAL SAFETY BOARD
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WEDNESDAY, APRIL 22, 2015
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:33 a.m. in room
406, Dirksen Senate Building, Hon. James Inhofe (chairman of
the committee) presiding.
Present: Senators Inhofe, Fischer, Rounds, Boxer, and
Gillibrand.
Senator Inhofe. We welcome our witness. Vanessa, I
appreciate the time that you gave me, filling me in on your
background and your intentions. I appreciate it very much.
There are three must-ask questions. First of all, do you
agree, if confirmed, to appear before this committee, or
designated members of this committee and other appropriate
committees of the Congress, and provide information subject to
appropriate and necessary security protection with respect to
your responsibilities?
Ms. Sutherland. I do.
Senator Inhofe. Do you agree to ensure that testimony,
briefings and documents in electronic and other forms of
communication of information are provided to this committee,
its staff and other appropriate committees in a timely manner?
Ms. Sutherland. I do.
Senator Inhofe. Do you know of any matters which you may or
may not have disclosed that might place you in a conflict of
interest if you are confirmed?
Ms. Sutherland. I do not.
Senator Inhofe. First of all, Ms. Sutherland, thank you for
being here today.
I want you to introduce your family, particularly that cute
little girl back there.
Ms. Sutherland. That is Sydney Sutherland who got a free
pass and excused absence from kindergarten today to come. Next
to her is what I thought was my mini-me until she sits next to
her father and it is actually his mini-me, Emmanuelle
Sutherland.
We have some colleagues from DOT with whom I have worked
for the last 4 years throughout different agencies and modes.
Senator Inhofe. Very good. Thank you.
Ms. Sutherland. I think at some point, my mother will make
it through security.
Senator Inhofe. Does she have a security problem?
Ms. Sutherland. No, just a little slow in walking.
Senator Inhofe. All right.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. The Chemical Safety Board is a deeply
troubled agency and its next Chairman will have to address a
number of issues relating to how the agency is managed.
Just last Tuesday, the EPA Inspector General, who acts as
the CSB Inspector General, told our oversight subcommittee that
the prior chairman, Rafael Moure-Eraso, likely committed
perjury and other crimes during his tenure at the CSB.
Thankfully, Mr. Moure-Eraso has resigned, but his legacy of
mismanagement, harassment, and turmoil remains.
For example, in a July 30, 2013 report, the EPA Inspector
General said ``CSB does not have an effective management system
to meet its established performance goal to conduct incident
investigations and safety studies concerning releases of
hazardous chemical substances.''
On June 19, 2014 former CSB Board Member Beth Rosenberg
testified to a House committee that, in her time on the CSB
Board, ``Those whose opinions differ from those of senior
leadership or the Chair are marginalized and vilified. At the
CSB, disagreement is seen as disloyalty. Criticism is not
welcome and staff fear retaliation.''
On March 4, 2015, current board member Mark Griffon
testified to a House committee that ``management deficiencies,
including an untenable turnover rate, have also contributed to
the inefficiencies in completing investigations.''
On January 28, 2015, despite the congressional and
Inspector General investigations about their mismanagement,
former Chairman Moure-Eraso, with the cooperation of Board
Member Ehrlich, took action to give the Chairman and Managing
Director complete control of the CSB by dissolving 18 Board
Orders that spelled out authorities for individual board
members and approving a new order that removes board oversight
of the actions of the Chairman. The public and even the other
CSB Board member, Mr. Griffon, had no notice of the plans to
restructure CSB operations.
According to investigations conducted by the House
Oversight and Government Reform Committee, the former Chairman,
the Managing Director, and the General Counsel used private
email accounts to hide their plans for operating the CSB from
other board members and CSB staff. After the EPA Inspector
General learned about this, he sent a January 2015 report to
President Obama concluding that Mr. Moure-Eraso and two of his
senior officials violated the Federal Records Act.
In a March 14, 2015, letter to President Obama, both
Senator Rounds and I asked for the immediate resignation of Mr.
Rafael Moure-Eraso. Two weeks later, Mr. Moure-Eraso resigned.
Mr. Moure-Eraso has now left the CSB and you have been
nominated to take his place. The senior staff, implicated in
numerous investigations alongside the previous chairman,
unfortunately remain.
Given the current state of affairs at the CSB, I will be
very interested to hear first, how you plan to address the
mismanagement and toxic work environment at the CSB, and two,
your views on what authority should be held by the Chairman of
the CSB and what authority should be held by the Board as a
whole.
Senator Boxer.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator
from the State of Oklahoma
Ms. Sutherland, thank you for being here today.
The Chemical Safety Board is a deeply troubled agency and
its next Chairman will have to address a number of issues
relating to how the agency is managed.
Just last Tuesday, the EPA Inspector General (who acts as
the CSB Inspector General) told our oversight subcommittee that
the prior Chairman, Rafael Moure-Eraso, likely committed
perjury and other crimes during his tenure at the CSB.
Thankfully, Mr. Moure-Eraso has resigned. But his legacy of
mismanagement, harassment, and turmoil remains. For example:
In a July 30, 2013 report the EPA Inspector General said
that:
CSB does not have an effective management system to meet
its established performance goal to ``[c]onduct incident
investigations and safety studies concerning releases of
hazardous chemical substances.''
On June 19, 2014 former CSB Board Member Beth Rosenberg
testified to a House committee that, in her time on the CSB
Board:
Those whose opinions differed from those of senior
leadership or the Chair are marginalized and vilified. At the
CSB, disagreement is seen as disloyalty. Criticism is not
welcome and staff fear retaliation.
On March 4, 2015 current Board Member Mark Griffon
testified to a House committee that ``management deficiencies--
including an untenable turnover rate--have also contributed to
the inefficiencies in completing investigations.''
On January 28, 2015, despite the congressional and
Inspector General investigations about their mismanagement,
former Chairman Moure-Eraso, with the cooperation of Board
Member Ehrlich, took action to give the Chairman and Managing
Director complete control of the CSB by dissolving 18 Board
Orders that spelled out authorities for individual Board
members and approving a new order that removes Board oversight
of the actions of the Chairman.
The public and even the other CSB Board member, Mr.
Griffon, had no notice of the plans to restructure CSB
operations.
According to investigations conducted by the House
Oversight and Government Reform Committee, the former Chairman,
the Managing Director, and the General Counsel used private e-
mail accounts to hide their plans for operating the CSB from
other Board members and CSB staff.
After the EPA Inspector General learned about this, he sent
a January 2015 report to President Obama concluding that Mr.
Moure-Eraso and two of his senior officials violated the
Federal Records Act.
In a March 14, 2015, letter to President Obama, both
Senator Rounds and I asked for the immediate resignation of Mr.
Rafael Moure-Eraso. Two weeks later, Mr. Moure-Eraso resigned.
Mr. Moure-Eraso has now left the CSB and you have been
nominated to take his place.
Given the current state of affairs at the CSB, I will be
very interested to hear--
1. How you plan to address the mismanagement and toxic work
environment at the CSB, and
2. Your views on what authority should be held by the
Chairman of the CSB and what authority should be held by the
Board as a whole.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Thank you very much, Mr. Chairman.
Welcome, and to your family as well. The little one may not
know exactly what this is about but she knows it is important.
I think she will remember it.
I want to begin by welcoming you, Vanessa Sutherland, to
the Committee on Environment and Public Works as we consider
your nomination.
The confirmation of qualified individuals to lead Federal
agencies is an important responsibility of the Senate. It is
critical that we move forward with the nominations under the
jurisdiction of this committee so that our Federal agencies can
fulfill their mission to serve the American people.
I just recently looked at the ratings that Congress has. I
am sorry to say it is very low. One of the issues I hear from
people at home is, why is it that we do not move these
nominations. We need to do that. I do not care whether you have
a Democrat in the White House or a Republican, or whether I
like that person or not; it is immaterial. The point is every
President deserves to have a team in place.
There is another Safety Board nominee waiting, Kristen
Kulinowski, to be a member of the CSB. Since we have all of her
paperwork, I certainly hope we can move forward with her
nomination because if we do not have boards that have their
full membership, sometimes they can become completely paralyzed
and cannot do anything because they do not have enough members.
Ms. Sutherland currently serves as Chief Counsel to the
Pipeline and Hazardous Material Safety Administration of the
U.S. Department of Transportation. She has held that position
since October 2011.
The CSB plays a critical role in protecting our communities
from chemical hazards by investigating industrial chemical
accidents involving fatalities, serious injuries, or
substantial property damages and making recommendations to
industry and Federal and State agencies so that similar events
might be prevented.
Two years ago this month, a massive explosion at a
fertilizer distribution plant in West, Texas, killed 15 people,
injured hundreds more, and damaged or destroyed homes,
businesses, and three unoccupied schools. We shudder to think
if those schools had been occupied what we would have been
dealing with.
After the disaster in West, Texas, President Obama issued
an Executive Order establishing a working group to conduct a
comprehensive review of our chemical safety and security
programs and asked them to develop recommendations for
improving these programs. However, I am very concerned that
despite the clear risks posed by our Nation's chemical
facilities, very little progress has been made to improve
safety.
Ms. Sutherland, if confirmed, you are going to face a
number of challenges, including tackling the backlog of open
investigations, the recent resignation of the Chairman, and
making sure that everyone pulls together to address the
management and governance issues between the Chairman and other
members of the Board. Many of those have been cited by my
friend, Senator Inhofe.
The problems that preceded you were bad. We have to call it
what it is, so you have a daunting challenge but a tremendous
opportunity.
I have found, watching as long as I have and being involved
in trying to get things done, leadership matters. I am very
interested in your nomination. I believe that you have the
requisite background to take on these challenges. It is a huge
responsibility.
Not everyone is going to love you. That is the price you
pay when you step into a leadership role. I know that to be
true. However, I believe what former President Clinton said to
me a long time ago, you have to be strong when you are a
leader. You have to be willing to take the blows.
I think you have a lot of challenges. In my question time,
I will ask you about those but I am very hopeful that you have
what it takes to get this job done.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer, U.S. Senator
from the State of California
I want to begin by welcoming Vanessa Sutherland to the
Committee on Environment and Public Works (EPW) today as we
consider her nomination to be the next Chairman of the Chemical
Safety Board (CSB).
The confirmation of qualified individuals to lead Federal
agencies is an important responsibility of the Senate. It is
critical that we move forward with the nominations under the
jurisdiction of this Committee so that our Federal agencies can
fulfill their mission to serve the American people. In addition
to Ms. Sutherland, the President has nominated Kristen
Kulinowski to be a Member of the CSB and, since we have all of
her paperwork, we should move forward with her nomination as
soon as possible.
Ms. Sutherland currently serves as Chief Counsel to the
Pipeline and Hazardous Material Safety Administration of the
U.S. Department of Transportation (DOT). This is a position she
has held since October 2011.
The CSB plays a critical role in protecting our communities
from chemical hazards by investigating industrial chemical
accidents involving fatalities, serious injuries, or
substantial property damages and making recommendations to
industry and Federal and State agencies so that similar events
might be prevented.
Two years ago this month, a massive explosion at a
fertilizer distribution plant in West, Texas, killed 15 people,
injured hundreds more, and damaged or destroyed homes,
businesses, and three unoccupied schools. After the disaster in
West, Texas, President Obama issued an Executive Order
establishing a Working Group to conduct a comprehensive review
of our chemical safety and security programs and develop
recommendations for improving these programs. However, I am
very concerned that despite the clear risks posed by our
nation's chemical facilities, very little progress has been
made to improve safety.
If confirmed as Chairman of the CSB, Ms. Sutherland will
face a number of challenges, including tackling the backlog of
open investigations, the recent resignation of the Chairman,
and addressing management and governance issues between the
Chairman and other members of the Board.
The No. 1 priority of the CSB is safety. Ms. Sutherland, I
need you to take these challenges on and be committed to the
crucial safety mission of the agency. It is a huge
responsibility but also a key opportunity.
I look forward to hearing from you about your vision for
the CSB and how you intend to move the agency forward.
Senator Inhofe. Thank you, Senator Boxer.
Let me make an observation. Senator Boxer and I do agree on
a lot of things and we work well together. We have a little bit
different understanding on the advice and consent of the
committees.
I have always felt, yes, the President should be given
every opportunity to surround himself with his own people.
Senator Boxer. Or she.
Senator Inhofe. Or she. The advice and consent is very
important. It is well ingrained in our system, so we always
take it seriously.
We will recognize you now, Vanessa, for 5 minutes.
STATEMENT OF VANESSA ALLEN SUTHERLAND, NOMINATED TO BE A MEMBER
AND CHAIRPERSON OF THE CHEMICAL SAFETY BOARD
Ms. Sutherland. Thank you, Chairman Inhofe, Ranking Member
Boxer, and distinguished members of the committee.
I am Vanessa Allen Sutherland and I am honored to have been
nominated by President Obama to be the next Chairperson of the
U.S. Chemical Safety Board, the CSB.
I would like to take this opportunity to acknowledge
members of my family and friends here today who have
encouraged, advised and supported me significantly throughout
this process and long before it.
The CSB plays a unique and vital role investigating the
most significant chemical disasters at fixed industrial sites,
and making safety recommendations to prevent future loss of
life and property.
Although fortunately major disasters are rare, when they do
occur they can have significant and lasting impacts on workers,
employers, and communities. The Board is a non-regulatory
agency whose investigations are not designed to punish or find
fault, but rather to help all of us learn from these tragedies.
First, a bit about who I am and why I am so excited about
this nomination. My background is as a practicing attorney, and
I hold an MBA from American University. After serving in both
government and industry for many years, in 2011, I was
appointed as Chief Counsel of the U.S. Department of
Transportation's Pipeline and Hazardous Materials Safety
Administration, or PHMSA.
PHMSA is involved in overseeing many of the same industries
and similar hazards that the CSB investigates. As chief
counsel, I manage a team of 31 lawyers advising the
Administrator and senior DOT personnel on hazardous materials
policies, interagency relationships, media and congressional
affairs, investigative plans, and employment issues.
Improving chemical safety is an issue that holds great
significance for me. Within a year of my joining PHMSA, there
was a serious gas pipeline explosion in West Virginia. The
Administrator and I went to the site, where among others we met
Ms. Sue Bonham, whose home was located next to the pipeline.
Her story and testimony is one that I will never forget.
She described to us in vivid detail the experience of
living through a major explosion. As she would testify to the
Senate, ``I stood in the center of my home where it was
trembling, shifting, shaking, grinding all around me; the
ground rumbling beneath me, thinking the earth would open up at
any moment and swallow me.'' She recalled looking up from under
her dining room table ``only to see everything sizzling,
blistering or melting.''
While Ms. Bonham miraculously survived this explosion, her
heart-wrenching account is all too similar to the workers and
residents who have experienced the industrial chemical
accidents that the CSB investigates.
From the residents of West, Texas, who saw much of their
town destroyed by an ammonium nitrate blast in 2013, to the
brave workers on the Deepwater Horizon, 11 of whom perished,
these experiences are all eerily familiar and analogous.
Despite its small size, just 40 people with an $11 million
annual budget, the CSB has been in the forefront determining
the technical causes of these accidents and highlighting
opportunities for improvement.
CSB investigators drew attention to the unsafe storage of
ammonium nitrate at the West fertilizer depot and were also
first to put forward a detailed explanation for why the
Deepwater Horizon's blowout preventer failed to operate.
The same safety management systems and practices that we
have sought to promote for pipeline safety are equally
important in the chemical sector. These include implementing
good engineering practices, worker training and procedures,
equipment inspections, and above all a safety culture that
permeates throughout the organization, and influences all
decisions from the CEO downward.
Over the years, the CSB has played an important role in
promoting these practices in the chemical sector. I have always
believed that safety is a shared responsibility. It is shared
among company personnel, government agencies, standard-setting
bodies, local emergency planners and responders, and
educational institutions.
For the public to feel safe from low-frequency, high
consequence chemical disasters, all these organizations need to
work together collaboratively toward a common purpose. From my
perspective, the CSB, through its nearly 100 major
investigations over the years, has amassed a tremendous wealth
of knowledge on chemical accident hazards.
If confirmed by the Senate, I hope to use my term in office
to encourage even greater use of this knowledge by industry,
government agencies, and others for accident prevention and
response. I believe the CSB's work is a tremendous and often
untapped resource for these organizations. With education and
collaboration, we hope the Senate will not be hearing from
another Sue Bonham.
Once again, I am honored by the President's nomination. I
will be happy to answer your questions. Thank you for the
opportunity to appear here today.
[The prepared statement of Ms. Sutherland follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Ms. Sutherland.
We are going to start off with 5-minute rounds. I think my
questions will take a little longer than that so we will be
having a second round. However, our votes are at 10:45 a.m., so
my guess is that is going to be a drop dead time.
I think we all agree that CSB needs a fresh start under new
leadership and not continuation of the past policies. You and I
talked about that in my office.
To clear the air, I want to ask you a few questions for the
record about your interactions with CSB. How many times have
you spoken to Mr. Moure-Eraso, Mr. Horowitz and Mr. Loeb before
today?
Ms. Sutherland. I was in the office, preparing for this
particular hearing, retrieving information and I happened to be
there the day Dr. Moure-Eraso was leaving, so I met with him
for the first time. I had never met him before. We spoke for
about 15 minutes in his office. He shared very jovially, this
will be yours, and it was a very short, pleasant conversation.
I have not spoken with him or met with him since.
Senator Inhofe. You did not speak with him before then?
Ms. Sutherland. No, I had never met him before.
Senator Inhofe. As far as the other two, Horowitz and Loeb?
Ms. Sutherland. Probably at least a handful. They have been
providing information such as CSB documents that might be
helpful in preparation as a nominee and certainly have helped
through I guess the preparation period of just discussing any
other documents that I might need, making me accessible or
having access to the CSB. That is probably about five or so
times.
Senator Inhofe. Did that include anything about their
status as members or employees of CSB or other appropriate
authority of the chairman and the CSB board members?
Ms. Sutherland. No, we have never talked about their
employment or status with regard to them personally.
Senator Inhofe. Thank you.
Did you have any knowledge of Board Order 2015-01 before it
was adopted January 28?
Ms. Sutherland. No.
Senator Inhofe. Did you ever tell anyone in the White House
that supported keeping Mr. Moure-Eraso as Chairman until his
term ended?
Ms. Sutherland. I am sorry, I am not sure I understood the
question.
Senator Inhofe. Did you tell anyone in the White House,
have any conversations where you were encouraging the White
House to keep Mr. Moure-Eraso as Chairman until his term ended?
Ms. Sutherland. I understand. No, I do not think it is my
place.
Senator Inhofe. You did not do that?
Ms. Sutherland. I do not think that is my place.
Senator Inhofe. Did you ever tell anyone in the White House
that you supported making Mr. Ehrlich an interim Chair?
Ms. Sutherland. I did not.
Senator Inhofe. In January 2015, the EPA IG notified the
White House that CSB Chairman Moure-Eraso, General Counsel
Richard Loeb and Managing Director David Horowitz knowingly,
all three, violated the Federal Records Act by using personal
email accounts to conduct official government business. The
House investigation found that General Counsel Loeb knowingly
used his private email because other CSB employees had access
to the CSB servers.
Given the fact that General Counsel Loeb and Managing
Director Horowitz took the same actions that led to the
dismissal of Chairman Moure-Eraso, do you think they should
continue to serve in the top leadership positions?
Ms. Sutherland. Those are very serious allegations. I think
as a nominee, I, like most people in the public, have watched
and read many of the statements both from the EPA Inspector
General as well as several hearings that have been very
publicly known and watched.
Certainly as a new chairperson, I would want to immediately
consult with my fellow board members, if confirmed, the staff,
review very seriously the performance management of both of
those employees, and the allegations. But as a nominee, it
feels premature for me to have a definitive hiring or firing
decision at this point but it certainly would be a very top
priority, if confirmed as chairperson.
Senator Inhofe. We were saying that given the fact that
they took the same actions, discussed by the IG and another
person, if that is true, do you think should continue if they
were guilty of the same thing, the same deficiencies as the
chairman at that time? We will put it in a hypothetical. If
that is true, do you think they ought to be retained?
Ms. Sutherland. I certainly believe that if employees are
engaged in illegal behavior, that is serious and could very
well warrant their termination immediately. If it turned out to
be as serious as I think we have been led to believe that it is
and has been discussed, then certainly I think as a leader
sometimes you have to take very hard action and make sure that
in taking those actions, you do not do anything that would
disadvantage the agency by not having knowledge transfer,
transition and the like.
Certainly, as the potential Chair of the CSB, I would have
no trouble making a hard decision if it turned out a
termination, a hiring or a firing needs to occur.
Senator Inhofe. In the event this is true, you would be
willing to terminate these people?
Ms. Sutherland. I think certainly as a Chair, I would also
consult with my board members on that decision. Certainly they
have been there as well but on certain types of personnel and
employment matters, I certainly think as a Chair, I would be
willing to take action up to termination if upon data and
consultation, that turned out to be the right decision to make.
Senator Inhofe. Thank you.
Senator Boxer.
Senator Boxer. I want to compliment you on the way you
handled those questions because we are talking about very
serious allegations and peoples' lives. We need to know the
absolute facts. I think you have displayed the type of
leadership that I appreciate so much, strong, yet cautious
because I think that is critical.
Thank you for asking those questions, Senator.
I wanted to note that today is Earth Day. This is the
Environment and Public Works Committee. I wanted to note that.
To me, Earth Day puts a spotlight on how we have to protect
our planet and our families. Your position is so critical.
There are so many explosions out there that we really have not
delved into. I want to ask you about those investigations.
Congress created the Chemical Safety Board to conduct root
cause investigations of industrial chemical accidents involving
fatalities. We have not even asked you about that, so I want to
ask you about that, serious injuries, substantial property
damage, so that similar events might be prevented. This is
critical.
For example, when we look at what is being stored and how
it is being stored and what happens, we can say we know why
this explosion occurred because this particular chemical was
stored in this particular way, without the proper safety
features. This can save lives.
There is an old religious saying, if you save one life, you
save the world. You are going to be in a very enviable
position, in my view, to be able to save lives. Not very many
people are directly in that position. It is so important.
I am worried about the limited resources that you have
because you cannot possibly investigate every chemical accident
that falls within your authority. When significant accidents
happen like the fertilizer plant explosion in West, Texas, the
CSB is called upon to conduct investigation immediately
regardless of what other investigations are still pending.
How would you approach addressing the need to investigate
the next significant accident while still keeping pending
investigations on track because we have had a series of
problems, interagency problems where one person says, don't
touch this, this is our domain, don't look at this and that is
a real problem.
Have you thought about that, the turf battles as my
Chairman says? I feel that you have that personality that is
going to be able to overcome this. But could you give us a
general answer since it is complex when there are a lot of
different agencies involved in an investigation but yours has
the distinct, definite authority that you need to move right
away? How do you do that without displacing other
investigations?
Ms. Sutherland. Thank you for that question, Senator Boxer.
I think I can start by answering it very generally with regard
to my experience at PHMSA.
We are required, and we embrace, working collaboratively
and collegially with other Federal agencies. Certainly where
possible, we strive to share resources. In accident
investigations, where possible, we share information. We have
fantastic subject matter experts in pipeline safety as well as
hazardous materials transportation. We recognize that is a
value to others, especially in accident investigations.
I would say that likewise with the CSB, other than the
obvious which is keeping lines of communication open within the
Federal Government to make sure there is not duplication, there
are not inefficiencies, there are not gaps and that we are
approaching safety in a collaborative approach, I think is a
good thing.
I certainly would want to transport that type of model and
collegiality. We work very closely with DOJ, EPA and others at
DOT. I see no reason why the CSB could not assert more of a
presence in these investigations and begin to work more deeply
and more collegially with Federal agencies because the
information they have on accidents both past and possible,
those that may occur in the future, is critical.
In that shared responsibility model, I think we all have a
seat at the table to make sure we prevent these types of
serious accidents from happening.
Senator Boxer. I think you are absolutely right. Our
concern is how do we prevent this from happening again. To do
that, we have to share the information and it does not happen.
We have seen turf battles that have been just awful. We have to
set aside or personalities when we are dealing with these kinds
of things.
This is my last question. The CSB has been criticized for
the length of time it takes to complete investigations and
release reports. In your opinion, from what you know so far,
what is responsible for these delays and how would you address
them if confirmed?
Ms. Sutherland. Thank you for that question.
Not having had a chance to really interview, meet with and
get the opinions of my potential future board members and/or
the staff to determine that, I am not specifically sure.
In those cases that have been closed a little bit more
quickly, because the CSB has done great work and closed some
investigations really quickly, I would like to understand what
differentiates those from the investigations or reports that
may take a more significant amount of time and try to replicate
what works in those more potentially complex or serious
investigations.
I suspect that it may be that some of my experience in DOT
could be translatable in that complex investigations,
particularly where there is a catastrophic event where evidence
is burned and destroyed, strewn for miles, and deaths and/or
serious injuries occur, those, in many instances, just by
definition, are going to take some time.
I certainly think there would be an opportunity to set
regular check-in points, a project plan and create some
strategies from those investigations that have not taken quite
as long and try to apply those to the more complex
investigations because the information the CSB shares and
generates is critical and not just prevention but emergency
response.
I think in that regard, as Chairperson, if confirmed, we
could predictably identify when we are going to need more
resources or to restructure how an investigation is done in
order to get more complex investigations completed in a timely
manner.
I certainly would be supportive of that. Most importantly,
I think listening, learning and consulting with the staff and
the current board members would be an easy first step in
getting some ideas on how to implement that.
Senator Boxer. Mr. Chairman, I am not going to have a
second round, so I just want to close this.
Senator Inhofe. Go ahead.
Senator Boxer. Thank you.
In my view, this is a really important issue, that you have
not had the chance to really get into because obviously you are
new to the board. I think it is critical to move without delay
when there is a problem because if it takes forever, we cannot
learn.
I am going to ask for a little more detailed answer, if you
would, just on how you would go about setting timelines and
making sure that agency's morale picks up. Because frankly, the
morale is very bad right now from being very high, because of
the obvious problems that my Chairman has pointed out.
Also, if you do not see an end to your work, it is
depressing. You have to find closure on incidents. If you could
give it a little more thought and perhaps get back to me on how
you would set the deadlines, thank you very much.
Ms. Sutherland. I would be happy to do so, Senator Boxer.
Senator Boxer. Thank you very much.
Senator Inhofe. Thank you, Senator Boxer.
We have been joined by Senators Rounds and Gillibrand. We
are in the process of the 5-minute opening questions.
Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
During recent congressional hearings, the EPA's Inspector
General testified that his office has had extreme difficulty
getting the full cooperation of CSB senior leadership in his
investigations.
Can you describe how you view the role of the Inspector
General and what steps you would take as Chair to ensure that
the EPA's Inspector General has the full cooperation of senior
CSB leadership?
Ms. Sutherland. Thank you for that question, Senator.
I am not sure if many people know but my first job out of
college was in an inspector general's office for the U.S.
Department of Energy, so I am very familiar with and supportive
of the great work that IGs do.
At DOT, I certainly have a very collaborative and collegial
relationship with our IG's office. We are very proactive in
both referring cases to them and collaborating where we see a
need to share information that we have uncovered, as well as
being responsive to them when we have audits, both ordinary
course audits as well as anything that we might want to focus
on in more specificity.
I see no reason why, if confirmed as Chairperson, I would
not enjoy the same kind of respect, collaboration,
collegiality, brainstorming and coordination with the EPA IG.
Senator Rounds. As with the EPA's IG, the CSB leadership in
recent years has been, shall we say, extremely reluctant to
cooperate with congressional oversight committees. Can you
describe how you view the appropriate oversight role of the
committee as it relates to CSB and what steps you would take as
the Chair to ensure that the committee has the full cooperation
of your senior CSB leadership team?
Will you commit to meeting regularly with Congress and
providing updates on progress to address some of the lingering
problems there at CSB?
Ms. Sutherland. Thank you, Senator.
I think communication is critical. Certainly, I am
extremely supportive of approaching any Chairperson role in the
vein of shared responsibility and communicating with the
Oversight Committee, understanding the concerns and those of
all stakeholders is a very essential role for any Chairperson.
I think the second part of your question was, would I
commit to meeting regularly. I think there is an absolute
benefit to meeting regularly to understand what critical issues
are. CSB is a small agency with a very, very meaningful and
powerful mission.
To the extent we are communicating well, explaining to
people what we do and understanding how we might do that better
and being forthcoming and sharing where there might be
challenges to what we are doing and how we are doing it, I
think is a great dialog to have in order for the team and the
staff to get the resources they need, the board to be effective
in explaining how it is carrying out the mission and quite
frankly, for the CSB to become a little more better known as
the valuable resource in the government that it is.
Senator Rounds. Very good. Thank you.
Mr. Chairman, I am completed.
Senator Inhofe. Thank you, Senator Rounds.
Senator Gillibrand.
Senator Gillibrand. Thank you, Mr. Chairman.
Thank you, Ms. Sutherland, for testifying before our
committee. I want to welcome your family. Welcome to this
hearing. It is a big day for your mom.
The Chemical Safety Board is tasked with the important role
of investigating industrial chemical incidents. Their
recommendations can help companies avoid these types of
accidents in the future.
CSB has received quite a lot of negative press lately. I
hope the change in leadership will quickly reverse the downward
trajectory of the CSB. This agency plays an important role in
public health and workplace safety. The board must redirect the
energy of its employees and refocus its mission.
Following an investigation of a chemical facility incident,
the board provides recommendations. These are integral to
increasing workplace safety and preventing disasters of a
similar nature from happening again.
There is currently a 73 percent adoption rate for these
recommendations. What are some ways, as chairman, that you
could increase this adoption rate?
Ms. Sutherland. Thank you, Senator.
In my preparation for this particular hearing, the 73
percent seems to actually be going up, so first, I would
commend the phenomenal staff at CSB for their previous
establishment of the Office of Recommendations within the CSB
to do that very thing, to track progress and make sure the
recommendations were being taken seriously, reviewed and
adopted.
Going forward, having worked at the NTSB at DOT, I think
there are certain things that the Office of Recommendations can
do, as well as the board members. The board members also play
an instrumental role in participating in and reviewing reports,
recommendations and helping to move them forward.
I think contacting individual industries, companies,
working with Federal agencies to understand some of the
obstacles or challenges and then working with them definitively
to try to reach resolution is a great thing.
To the extent they can propose compromises or alternatives
that would meet the same safety objectives, that would be a
welcome approach as well.
Certainly as a non-regulatory body focused on
investigations, dissemination of information and sharing for
prevention and response activities, I think continuing to make
sure that message is carried further to underscore and amplify
the importance of those recommendations outside of just meeting
with stakeholders is a great thing.
Senator Gillibrand. What are some of the strategies you
hope to use to amplify education and outreach?
Ms. Sutherland. I certainly think there are benefits of
going to educational institutions, conferences. Using one
example with the CSB, I was very impressed that the Chemical
Safety Board investigation findings actually led to a change in
university curriculum for chemical engineering.
In that regard, that is powerful messaging. When you can
amplify the reactive agent elements of chemistry that may have
been overlooked or amplify that certain parts of curriculum
need substantive and deeper experience before someone enters
the workplace, those are great and wonderful stories and
examples to have.
I think the more the CSB can dedicate time, I know it is
only 40 people and $11 million, and the board can play a
critical role in sharing those kinds of examples of success, I
think the more luck we may have in seeing the recommendations
as an important factor in improving safety overall. It is a
shared responsibility so we have a lot of stakeholders to
cover.
Senator Gillibrand. On the issue of safety and security, I
am sure during your time with the Pipeline and Hazardous
Materials Safety Administration it was clear that security,
both the physical and cyber infrastructures, is of most
importance.
As chairman, are there ways you could focus on increasing
both the safety and security of the Nation's chemical industry?
Ms. Sutherland. I think safety and security are often
integrally tied. At PHMSA, we have worked very closely with
TSA, Homeland Security and various other agencies to ensure
that safety is discussed and analyzed in the same context as
those who unfortunately may have nefarious intent and want to
highlight certain facilities for terrorist activity or other
bad behavior.
Although I know it is not squarely in the safety mission of
the CSB, I certainly think the board members and the Chair
could play a very critical role in engaging a similar
conversation so that as we are looking at safety and
understanding root causes, to the extent those are security
related, that we share that information appropriately with
others throughout the government.
Senator Gillibrand. Thank you so much for your testimony.
Ms. Sutherland. Thank you.
Senator Inhofe. Thank you.
We are going to have a second round of questioning. I think
there will be another member arriving.
Are you aware that Senator Lautenberg, who helped draft
this legislation authorizing the CSB, believed that while the
chairman exercised the executive and administrative functions
of the board, in a 1999 letter, he said, ``There is no doubt in
my mind, however, that the CSB chairman must perform those
functions under the direction and approval of the board as a
whole''?
Are you aware that Randolph Moss, Acting Assistant Attorney
General for the Department of Justice, Office of Legal Counsel,
issued an opinion in 2000 saying ``In disputes over the
allocation of authority in specific instances, the board's
decision controls as long as it is not arbitrary or
unreasonable''?
Will you commit to this committee that if you are
confirmed, you will follow the direction of Senator
Lautenberg's 1999 letter and that of the Moss opinion?
Ms. Sutherland. Thank you for that question, Senator. I am
sure it is on the minds of many, given the governance
challenges that have been identified over the last 12 to 18
months. If confirmed as Chairperson, I certainly think that
governance and the general cooperation among the board and the
effectiveness of the board, would have to be a top priority.
In consultation with my board members, I certainly think
that revisiting the board orders is probably a good thing to do
given how much controversy and ambiguity there has been
regarding the interpretations and practices of the board
orders.
I absolutely commit to being collaborative and
understanding that what we do is as important as how we do it.
Chairs do not have unilateral authority to make all decisions
for the board. I will absolutely collaborate and be collegial
in making decisions that are going to affect the future and
efficiency of the agency.
Senator Inhofe. I think that is a long way of saying yes,
as I read the statement made by Senator Lautenberg.
Closely related to that, the current board members just
passed a new order that temporarily gives back to the board
some of its authority. It does not rescind Board Order 2015-1
that I referred to in my opening statement. It is only
effective to June 24 or until the new Chair is confirmed.
What is your view of that order or are you familiar with
that, the replacement order?
Ms. Sutherland. I am only generally familiar with the
replacement order and certainly defer to the three current
board members as to how they operate before other members and a
chairperson are confirmed.
As I mentioned, given the fact that governance has been a
topic for many years at the CSB, it would seem to me that given
the challenges, it is critical for any incoming chairperson to
meet with the members and potentially, whether it is repeal,
modify, review, going forward, I think those board orders
certainly deserve some clarity.
If confirmed, I certainly would want to review all of the
actions being taken in the interim and understand more about
how the board would want to move forward.
Senator Inhofe. From what you know now, you are somewhat
familiar with that, do you have an opinion as to whether it
goes too far, does it go far enough or anything concerning
that? I think it is called 2015-26. Do you have an opinion on
that?
Ms. Sutherland. That, I do not have.
Senator Inhofe. Board Members Griffon and Engler have
testified they would like to see Board Order 2015 rescinded to
restore public confidence in the CSB. You have already answered
as to whether or not you agree with that, but I think something
has to be done to restore confidence. This has been a problem.
This was pointed out by Senator Rounds and myself. Our
investigation resulted kind of resulted in the changes that
have taken place that make this committee hearing necessary.
Do you have anything to add as to your plan for dealing
with this Board Order or do you see something else you could do
in this area as a new chairman, if you are confirmed, to
restore confidence?
Ms. Sutherland. Trying to be short in the answer, boards
and commissions operate in a very complex, legal and regulatory
space. Orders over orders over orders can create a lot of
confusion and ambiguity.
If confirmed as chairperson, I think the first thing to do
would be for the board, as a whole, to take a look at all of
those Board Orders and determine collectively the best way to
move forward.
Certainly, as a chairperson and member, the Chair has a one
in five conversation and vote on these very critical topics. If
there is not agreement or understanding going forward, then I
would fear that the same level of discord and mistrust would
continue on the board. As a nominee, it feels premature for me
to definitively know which specific Board Order may be the
right or wrong one, given that they have caused a little bit of
tension for many years.
Senator Inhofe. I think that is fair.
Senator Rounds, do you have further questions?
Senator Rounds. Mr. Chairman, if I could, I would like to
follow a little bit on the same line that you were following.
I will go into a little bit of detail that we are kind of
trying to work our way through. On January 28, 2015, CSB held a
hearing to consider findings related to a CSB investigation. No
notice was given to Board Member Mark Griffon or the public
that a proposed Board Order was going to be considered and
voted upon. No copy of the proposed Board Order was given to
Board Member Griffon or the public to review prior to the
hearing.
Despite the lack of notice, Board Member Manuel Ehrlich
offered Board Order 2015-01, the one the Chairman referred to,
which rescinded 18 prior Board Orders and consolidated
authority in the CSB Chairman. The Board Order was approved
with Mr. Ehrlich and Chairman Moure-Eraso voting in favor of it
and Board Member Griffon opposed to it.
You can see the focus we have here. We are curious about
your general thoughts on the process that was used to pass this
Board Order. Maybe you were not aware of what happened. We can
kind of suspect what your response will be but for the record,
what was your general thought on the process used to pass this
particular Board Order?
Ms. Sutherland. You are correct. I was not familiar with
the whys or the rationale for how that meeting came to be, the
outcome or any of the details or specificity. I would say that
having been on other boards, certainly not at this level, but
non-profits and 501(c)(4)'s, having been a chairperson, having
been president of a small organization, it is not necessarily
what you do when you are leading people, it is how you do it
and how you communicate it.
Certainly as a chairperson, my goal would be to
communicate, be transparent, and make sure all voices are
heard. I think much of the challenge I have seen as just a
citizen with the CBS has been a feeling, however legitimate,
that there is not transparency, there is a lack of
communication, that diversity of thought, opinion and
perspective is not welcome.
I do not think that you get the best outcomes or product
when you are not transparent and communicate. As chairperson, I
would lead with that approach.
Senator Rounds. I think the example of how this particular
piece of the process worked is a good example of probably how
it should not have worked. Have you had a chance to discuss any
of this process with the current members of the board at all?
Ms. Sutherland. I have not.
Senator Rounds. You have not. OK. Board Members Griffon and
Engler have testified they would like to see this Board Order
rescinded to restore public confidence in the CSB.
Would you agree to sit down with them and consider their
recommendation and basically talk about how you would plan to
deal with, as you have heard, regaining that sense of
confidence that there will be a process within the operation of
the entire board that is a lot more transparent and open than
apparently what has been going on in the past?
Ms. Sutherland. That seems to be necessary to move this
board forward in an efficient and effective manner so they can
return to the focus of the CSB with less time and attention on
governance and more time and attention on accidents and
investigations.
Senator Rounds. Very good. Thank you.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Rounds.
When you first introduced your family, your mother had not
arrived. Has she arrived?
Ms. Sutherland. She has.
Senator Inhofe. I welcome you, Mom. You should be very
proud to be a part of this.
Ms. Sutherland. That is Audrey Allen.
Senator Inhofe. Very good. Thank you very much.
We do not have more questions. We appreciate very much your
presence here and your answers to our questions.
Ms. Sutherland. Thank you, Senator.
Senator Inhofe. We are adjourned.
[Whereupon, at 10:22 a.m., the committee was adjourned.]
[An additional statement submitted for the record follows:]
Statement of Hon. Benjamin L. Cardin, U.S. Senator
from the State of Maryland
I would like to welcome our nominee here before this
committee. Vanessa Sutherland was born at Sibley Memorial
Hospital here in Washington, DC and after several days came
home to Ft. Washington, MD where she lived in Tantallon until
college. She attended a Queen Anne School, in Upper Marlboro
from seventh grade through high school. She now lives in Ft.
Washington, as do her parents and many of her siblings.
I want to praise Ms. Sutherland for her dedication to
public service and to thank her, and congratulate her, for
picking the best State in the country in which to live much of
her life.
[all}