After the Deepwater Horizon drilling rig exploded in the Gulf of Mexico, the Obama Administration and many Members of Congress reached the same conclusion: To prevent similar disasters, workers in the offshore oil and gas industry should be given whistleblower protections. They shouldn’t have to worry that, if they report safety hazards, they could lose their jobs.
“A whistleblower may be the only thing standing between a safe workplace and a catastrophe,” George Miller, a California Democrat who at the time was chairman of the House Education and Labor Committee, said in 2010.
But more than seven years after the disaster, the government has yet to establish such protections.
Now, in the face of resistance, a federal agency that joined the call for whistleblower protections is considering giving up on its recommendation.
The U.S. Chemical Safety Board’s actions serve as a reminder that the effort to fill in whistleblower protections for offshore workers has stalled. They also show that the board, a tiny agency that President Trump proposed eliminating, is wrestling to define the limits of its authority.
The Chemical Safety Board investigates industrial accidents involving chemicals in much the same way the National Transportation Safety Board investigates plane and train crashes. Like the NTSB, it issues recommendations on how to prevent future accidents. Also like the NTSB, it depends on other authorities to carry out its recommendations. The board’s four members were each appointed by President Obama to five-year terms.
The Chemical Safety Board was one of several parties that investigated the Deepwater Horizon disaster. As comedian Rodney Dangerfield might have put it, the board did not always get respect. The owner of the Deepwater Horizon drilling rig, Transocean, disputed the board’s authority to probe the matter and fought its subpoenas. The board won a lengthy court battle and gained access to Transocean records.
In April 2016, about six years after the fatal explosion and oil spill, the board released the final installments in its four-volume report. Based on its investigation, the board issued 16 sets of recommendations.
According to the board’s website, all of them remain open, meaning the board does not count them as having been implemented.
The recommendations included creating a “process that workers can use to seek redress from retaliatory action” if they report unsafe work conditions or “near misses,” or if they try to stop work because of safety concerns.
The recommendation was meant to fill a gap in whistleblower protections. The gap involves whistleblowing about workplace safety and health issues on offshore rigs and drilling platforms, as distinct from whistleblowing about environmental or pipeline safety, according information submitted to a House committee in 2010.
The Chemical Safety Board’s whistleblower protection recommendation, among others, was routed to the Bureau of Safety and Environmental Enforcement (BSEE, pronounced “Bessie”), an agency that oversees offshore drilling.
BSEE reacted skeptically. In a June 8, 2017 email, a BSEE official said the whistleblower proposal was “outside the scope of BSEE’s authority.” Responding to a package of recommendations, Doug Morris, chief of BSEE’s Office of Offshore Regulatory Programs, suggested that some would be better directed to other agencies and added that the “foundation” for BSEE to act on another recommendation “seems tenuous.”
“I think I have what I need,” Charles Barbee, the safety board’s director of recommendations, replied. “Just to confirm a final outcome; based upon the language in the paragraphs below, it sounds like BSEE will decline to implement those two recommendations. Correct?”
“Chuck, I think action in the immediate future, given other priorities within the Bureau, is unlikely at this time,” the BSEE official answered. “It would be helpful if these recommendations would also be directed toward the industry groups . . . that develop voluntary standards and guidelines for their members.”
A spokeswoman for the safety board, Hillary Cohen, declined to provide that correspondence. The Project On Government Oversight obtained it from BSEE.
Based on BSEE’s position, the safety board’s recommendations staff essentially proposed canceling the recommendations. In safety board parlance, the staff proposed changing their status from open to closed.
That would reduce the number of open recommendations, a statistic that the safety board tracks. The number of recommendations issued and not implemented can reflect on the board’s effectiveness.
At a recent safety board meeting, board chair Vanessa Allen Sutherland said she agreed that the worker protection recommendation was “a really good idea.” But she expressed reluctance to “beleaguer and browbeat” another agency to do something the other agency considers outside its authority. As a matter of law, Sutherland said, the safety board must defer to the other agency’s assessment. Even if the safety board thinks BSEE is the right authority to implement the recommendations, “the question then becomes if they’re not going to take any action, do we continue to spin our wheels for six more years while they figure out whether or not they have this jurisdiction?” Sutherland said.
Sutherland also questioned whether the safety board had grounds to issue certain recommendations in the first place. She cited a “lack of robust causal links” between the recommendations and the safety board’s investigative findings—in other words, whether the proposals flowed directly from the causes the board identified for the Deepwater Horizon disaster.
Safety board member Rick Engler argued against closing the whistleblower recommendation.
“Today, the CSB faces two underlying questions. First, does worker participation really matter for safety? And second, does CSB have an obligation under law or own policies, as well as the will to recommend broad, preventive, regulatory reforms to achieve safety?”
He also argued against holding the board’s recommendations to an “overly narrow” standard of “incident causation.”
The safety board is scheduled to vote on the issue at a November 14 meeting.
A Democratic Congressional aide who spoke on condition of anonymity said dropping the whistleblower protection recommendation for offshore workers would send the wrong message. Instead of giving up on the recommendation, the board should address it to Congress, the aide said.
In 2010, the House approved a whistleblower protection bill for offshore workers by a vote of 315 to 93. The bill died in the Senate. Representative Mark DeSaulnier (D-CA) is preparing to reintroduce it.
The safety board’s two most recent investigative reports—one on a chemical release and fire at an ExxonMobil refinery in Baton Rouge, Louisiana, and another on a chemical release and “flash fire” at Delaware City Refining Company in Delaware City, Delaware—are less likely to generate such controversy. They include no recommendations.