The Chemical Safety Board investigates regulatory issues related to incidents such as the Texas fertilizer plant explosion in april.

The Chemical Safety Board investigates regulatory issues related to incidents such as the Texas fertilizer plant explosion in april. LM Otero/AP

Danger Zone Dispatches

A little-known agency deploys teams to find faulty regulations after chemical disasters.

On the morning of April 8, 2011, an explosion shook a self-storage warehouse in Waipahu, Hawaii. A cave-like magazine containing illegal Chinese fireworks seized by federal agents blew up, ending five lives and injuring six. All were employees of a subcontractor working with a Virginia-based company on contract with the Treasury Department to safely dispose of hazardous inventory. Though agencies such as the Occupational Safety and Health Administration and the Environmental Protection Agency would be called to investigate this tragedy and others like it—including the fatal explosion that rocked West, Texas, recently—a lesser known body would conduct its own painstaking investigation. The Chemical Safety Board, an independent agency led by a five-member panel, since 1998 has probed the effectiveness of workplace regulators and rules for handling dangerous materials. The agency made national news in April when it responded to the fertilizer facility explosion in Texas, in which 15 people died and more than 150 were injured. The board dispatched a dozen staff members to investigate—its highest deployment ever.

 After staff investigated the Hawaii case, the board voted unanimously to take the unusual step of going beyond proposed remedies by calling for changes in the Federal Acquisition Regulation.

“This was a completely preventable tragedy, because the contractors were not vetted, and the workers were not trained,” board member Beth Rosenberg says. “Board members are deployed when there is an incident—when we get called in, there are corpses.”

The agency’s report explained how the three fireworks shipments were seized as contraband; though labeled as consumer grade, they were consistent with the more hazardous commercial grade. The prime contractor, VSE Corp., was not required under federal regulations to review the safety record of the Oahu-based subcontractor, Donaldson Enterprises Inc., the January report says. 

The accident and the deaths “occurred under a federal contract and a subcontract awarded by VSE, without performing a proper responsibility determination, or at least due diligence,” says Richard Loeb, the Chemical Board’s general counsel and a former acting deputy administrator of the Office of Federal Procurement Policy. “DEI had two problems: the inability to do the work, and that it didn’t have an adequate disposal plan.”

The report by investigators and engineers on the agency’s 49-person staff described the subcontractors’ disposal methods, which involved soaking the fireworks tubes in 55-gallon diesel-filled steel drums, with a plan to transport them to a local shooting range and burn them. The board criticized the two companies and several agencies for allowing assignment of work to employees with insufficient technical expertise. DEI had offered the “lowest-cost and most time-efficient bid,” the report said.

The board said contracting regulations lack sufficient attention to safety risks, noting there are virtually no national standards for fireworks disposal.

The remedial actions the board went on to recommend cast a wide net. If accepted, they would affect Treasury’s acquisition regulation, and its procurement and asset forfeiture functions. Also tapped to consider reforms were EPA and the Bureau of Alcohol, Tobacco, Firearms and Explosives, as well as VSE Corp. and the National Fire Protection Association.

Of the recommendations, the most daunting could be amending the FAR. “This is the board’s first foray into dealing with the contracting issue and the FAR Council,” says Loeb. “We have no regulatory power, so we use the bully pulpit. We have a reputation for calling things the way we see them, so we’re probably more independent than the FAR Council is used to dealing with.”

The Senate-confirmed Chemical Board currently has two vacancies. President Obama has nominated Richard Engler, founder and director of the New Jersey Work Environment Council for one of them. The three incumbents “come from the Work Environment Department of the University of Massachusetts at Lowell,” notes Rosenberg, “so we’re completely focused on improving worker health and safety.” The acceptance rate for the board’s recommendations is 70 percent or more, she says. 

“We’re a nonregulatory agency, like the National Transportation Safety Board,” Loeb says. “We’re seen by the private sector as a nonregulatory alternative, well-respected.”

Still, the board is not without critics. In April, the nonprofit Center for Public Integrity reported that EPA’s inspector general was examining the board’s audit process to learn why its probes take as long as they do. The center cited investigations of two disasters in April 2010 that are still pending: the explosion at the Tesoro Corp. oil refinery in Anacortes, Wash., which killed five and injured two, and the explosion of the Deepwater Horizon drilling rig in the Gulf of Mexico, which caused 11 deaths and a major oil spill. 

“It is unacceptable that after three long years, the CSB has failed to complete its investigation of the tragic Tesoro refinery accident,” Sen. Patty Murray, D-Wash., told the center. “The families of the seven victims and the Anacortes community deserve better, and the CSB must be held accountable for this ridiculous delay.”

Board Chairman Rafael Moure-Eraso and Managing Director Daniel Horowitz say the staff is spread thin. 

Loeb is optimistic that agencies will accept the board’s recommendations in the wake of the Hawaii fireworks explosion. But as of April, the White House-run FAR Council had not responded.

The council may be concerned about the reaction from industry, which “doesn’t like to have a strike called on them after the fact,” Loeb says. “There’s a belief in the contractor community that compliance issues are something they prefer to not deal with.”

A 2001 FAR rule, since repealed, “made compliance with law and regulation one of the so-called responsibility standards required when agencies award a federal contract. But it was controversial,” Loeb says, and some in the contracting industry call it blacklisting. 

Michael Fischetti, executive director of the National Contract Management Association, believes the FAR is already clear about prime contractors bearing responsibility for the capabilities of their subcontractors. “If the government expected this contract involved unique safety issues otherwise  not regulated, those circumstances could have been identified within the contract statement of work,” he says. “The contract could have included guidance promulgated by the Chemical Safety Board.”

Loeb says FAR changes can be contentious. “Usually they involve money issues—some contractor got paid too much for something that didn’t have value. But in this case, the lack of contractor due diligence for something that was so hazardous, resulting in five deaths, was more compelling than a case in which a company has a long record of poor labor relations or is stiffing the government,” he says. “This is more than shenanigans. These families will never recover.”

NEXT STORY: Around Government

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.