SUPERIOR, Wis. -- It’s been nearly three years since the Husky Energy refinery in Superior exploded, and nearly two years since federal investigators first planned to release the incident’s final investigation.
But the agency in charge of the investigation — the U.S. Chemical Safety and Hazard Investigation Board — still has yet to release its final report on the April 26, 2018, fire and explosion that prompted an evacuation of much of Superior.
Former employees, watchdogs and labor and industry groups say the agency has been beleaguered by underfunding and turnover of investigators and unfilled board positions, leading to a backlog of recommendations and investigations, including on the Husky refinery.
The CSB currently has 20 ongoing investigations dating as far back as 2016, according to its website. The Husky incident is the fourth-oldest open investigation. The agency also has 108 open recommendations.
Former President Donald Trump tried to cut the agency completely at least three times and only filled one vacancy on the five-member board. Since May 2020, CSB Chairman and CEO Katherine Lemos has served as the lone board member.
An Inspector General’s report in July 2020 highlighting management issues faced by the agency said such an arrangement would only hurt the agency.
“Having only one member impairs the function of the CSB, as all functions rest with that one member … workload limitations arising from one board member attempting to perform the work of five affect the accomplishment of the board’s technical responsibilities, including accident reconstruction, safety engineering, human factor identification, toxicology reviews, and air pollution regulation assessments,” the report said.
That’s only part of the problem, said a former CSB employee who spoke to Forum News Service on the condition of anonymity.
“The drain of CSB investigators is significant. … Almost all the senior investigators have left the agency and there hasn’t really been a push to replace those investigators,” the former employee said.
In the CSB’s April 2 board meeting, Lemos said the agency was working on the “need” to hire more technical and support staff, and said the agency had just submitted four investigator position postings to human resources “with another round of investigator positions to follow,” according to the meeting’s script. The agency also hired six investigators in 2020, the CSB said in its year-end review.
But, the former employee said, investigators and other employees are being hired, getting up to speed on an investigation, and then leaving after just a year or two, which worsens the backlog.
The agency has not released a final investigation report since December 2019, but has opened nine new investigations during that time.
But on Tuesday, the agency announced it planned to release the final investigation report for an October 2019 fatal chemical exposure in Odessa, Texas, on May 4.
In the news release, Lemos said it’s “the first investigation report action of several to come in the next year.”
The former employee said the delays to Husky’s investigation are likely due to staff shortages, even though the final Husky report “was certainly in the process of nearing the end. It never reached the chair though.”
CSB spokesperson Hillary Cohen declined an interview request with agency officials about the Husky investigation.
"The CSB does not comment on draft reports or release dates as they are not considered public until a final board vote," she said in an email. "The CSB is actively working on the Husky Refinery investigation."
Asked if a one-person board or the low number of investigators has delayed the investigation, Cohen said the one-person board can hold a "quorum of one" to vote out reports, and the agency plans to keep hiring investigators this year.
"Of course, as an agency we look forward to the addition of new board members," Cohen said.
Calls for Biden to restore full board
The dwindling board and backlog of investigations has spurred calls for a return to sufficient funding of the agency and a full board, with some seeing the Biden administration as a potential savior to the agency suffering from years of neglect and existential threat under Trump.
Earlier this month, a group of U.S. senators — Amy Klobuchar, D-Minn.; Jeff Merkley, D-Ore.; Tom Carper, D-Del.; and Bernie Sanders, I-Vt. — wrote to President Joe Biden urging him to fill the four vacancies on the CSB over concerns the agency's handling of investigations and recommendations would be “jeopardized” by just one member on a five-member board.
“These vacancies have contributed to a backlog of over 14 investigations dating back to 2016 and more than 100 open safety recommendations that have not been finalized. This is especially concerning given that the core mission of the agency is to provide for chemical safety changes through lessons learned from previous incidents,” the senators wrote. “The CSB cannot effectively accomplish that mission with only a single board member in place.”
And in a joint letter last week, the United Steelworkers labor union and American Fuel and Petrochemical Manufacturers, a trade organization representing refiners, urged Biden to fill the remaining four board vacancies and offered to collaborate in finding candidates.
“While our respective organizations sometimes have alternative perspectives on given issues, a superseding common goal throughout both organizations is safety in the workplace," the letter said. "We believe that a fully constituted CSB, properly funded and managed, greatly contributes to this shared objective. … Finally, in order to be successful in its mission, the CSB must have adequate funding to attract, train and retain qualified staff investigators."
But as of April 23, the CSB had not heard from the Biden administration about plans to fill the open board seats, Cohen said.
Awaiting final investigation, work to rebuild refinery continues
Though the CSB is not a regulatory agency — it can't issue fines or penalties — its investigations can dig into an incident’s root cause and its recommendations can shape industry standards.
But even as it waits for the release of the final investigation, the Husky refinery in Superior, heavily damaged in the blast and fire, continues to rebuild.
Kim Guttormson, a spokesperson for Cenovus, which now owns Husky, said the refinery is expected to come online in the first quarter of 2023 with additional safety measures.
Asked what the delay in the final investigation and its recommendations could mean for the refinery and if the company had heard from investigators, Guttormson said: “We continue to cooperate with the CSB as it finalizes its report.”
Paul Blackburn, staff attorney for Honor the Earth, a native-led environmental organization that has raised concerns over the refinery’s use of hydrogen fluoride, said the CSB helps keep watch on dangerous industries.
“It’s important for the investigation to complete so the community can have closure on that,” Blackburn said. “I think it’s important to have in the record because we need to make sure that the refinery keeps on its toes.”
But as more time goes on, the less pressing the recommendations may become.
“The largest chance for change is closing the investigation,” the former CSB employee said. “And so the longer time goes on, things get rebuilt, people move on, the urgency to drive change really fades.”
What the CSB has done on Husky
In the year after the explosion and fire on April 26, 2018, the CSB routinely provided updates on the investigation.
In the days following the blast, the CSB said where the blast likely happened: the fluid catalytic cracking unit. And in August 2018, the CSB visited Superior to provide an update on the cause: a worn valve that allowed air and chemicals to mix and spontaneously ignite.
In December 2018, the agency released information blaming company safeguards that did not consider the worn valve and were “ineffective” at preventing the blast. At the same time, the agency held a town hall meeting in Superior where residents expressed concern over the refinery’s use of hydrogen fluoride, a highly toxic chemical used in the refinery process that prompted the evacuation of much of Superior, though none was released.
In February 2019, the CSB told the News Tribune it was “still hoping to meet a late spring/early summer release for the final report.”
Then in April 2019, three days before the one-year anniversary of the Superior blast, the CSB called on the Environmental Protection Agency to re-examine its existing hydrogen fluoride regulations.
Since then, updates on Husky have been far less frequent. The agency released an updated animation on the blast in December 2019, and in September 2020 said during a business meeting that the investigation could be completed by the first quarter of 2021, which has passed.