Division of Powers and Responsibilities Between the Chairperson of the Chemical Safety and Hazard Investigation Board and the Board as a Whole

Division of Powers and Responsibilities Between the
Chairperson of the Chemical Safety and Hazard Investigation
Board and the Board as a Whole
U nder th e C lea n A ir A ct Am endm ents o f 1990 and general principles governing the operation of
boards, the day-to-day adm inistration o f C hem ical Safety and Hazard Investigation Board m atters
and ex ecution o f B oard policies are the responsibilities o f the chairperson, subject to Board over­
sight, w hile substantive policym aking and regulatory authority is vested in the B oard as a whole.

In disp u tes o v er the allocation o f authority in specific instances, the B oard’s decision controls, as
long as it is not arbitrary o r unreasonable.

June 26, 2000

m em orandum O p in io n f o r t h e G e n e r a l C o u n s e l
C h e m ic a l S a fet y a n d H a z a r d I n v e s t ig a t io n B o a r d

Y o u have asked for our opinion regarding the legal division of powers and
responsibilities between the chairperson of the United States Chemical Safety and
Hazard Investigation Board (“ Board” ) and the Board as a whole. This memo­
randum responds to your request.
The Board was established under section 301 of the Clean Air Act Amendments
of 1990 (the “ A ct” ) as a tenure-protected agency charged with investigating and
monitoring accidental chemical releases at industrial facilities and in transport.
See Pub. L. No. 101-549, §301, 104 Stat. 2399, 2565-70 (1990) (codified at
42 U.S.C. §7412(r)(6) (1994)). The Act provides that the Board “ shall consist
of 5 members, including a Chairperson, who shall be appointed by the President,
by and with the advice and consent of the Senate.” 42 U.S.C. § 7412(r)(6)(B).
“ The Chairperson,” the Act continues, “ shall be the Chief Executive Officer of
the Board and shall exercise the executive and administrative functions of the
Board.” Id. The Act vests in the Board a range of powers and responsibilities
relating to investigating, monitoring, and reporting accidental chemical releases.
See id. § 7412(r)(6)(C)-(S). It further provides that “ [t]he Board is authorized
to establish such procedural and administrative rules as are necessary to the exer­
cise of its functions and duties.” Id. § 7412(r)(6)(N).
As we understand it, a basic disagreement has existed for some time between
the former chairperson of the Board, who resigned as chairperson on January 12,
2000, but is still a Board member, and the other Board members regarding the
relative authority of the chairperson and the Board as a whole under this statutory
schem e.1 The former chairperson maintains that “ the statute provides [the chair-
’ T he Board’s Office o f General Counsel, at the request of the Board, examined this issue and presented a written
opinion to the Board on August 30, 1999. See Memorandum for the Chemical Safety and Hazard Investigation
Board, from Christopher Warner, General Counsel, Re: Board Governance Issues (Aug. 30, 1999) ( “ Warner Memo­
randum ” ). When this opinion failed to resolve the dispute, both the chairperson and the other Board members,
in separate letters, requested our views on the subject See Letter for Beth Nolan, Assistant Attorney General, Office

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Investigation Board and the Board as a Whole

person] . . . with complete authority over all aspects of the [Board] except that
all of the Board Members must vote on three items: approval of Board Investiga­
tion Reports, recommendations to the Administrator of [the Environmental Protec­
tion Agency (EPA)] and the Secretary of Labor, and approval of regulations to
be published in the Federal Register .” December Hill Letter at 1. The Board,
by contrast, believes that the Act places day-to-day administration of the Board
in the chairperson’s hands, subject to the Board’s general policies and directives,
while conferring on the Board responsibility for the various substantive functions
that are outlined in its statute; that the Board decides whether a matter is an
administrative concern of the chairperson or a substantive concern of the Board,
as long as its views are reasonable; and that, in the absence of Board policy on
a specific issue, the chairperson possesses substantial discretion to act on his own.
See Warner Memorandum at 2; November Board Letter (stating that the Board
believes that the Warner Memorandum is correct).
We believe that, under the Act and general principles governing the operation
of boards, the day-to-day administration of Board matters and execution of Board
policies are the responsibilities of the chairperson, subject to Board oversight,
while substantive policymaking and regulatory authority is vested in the Board
as a whole. In disputes over the allocation of authority in specific instances, the
Board’s decision controls, as long as it is not arbitrary or unreasonable.
We note at the outset that we do not address the details of how these principles
apply to specific management and governance areas in which disagreements might
arise between the chairperson and the Board.2 Indeed, when addressing a similar
set of questions regarding the relative authority of the chairman of the Interstate
Commerce Commission (“ Commission” ) and the Commission members over the
administrative and substantive affairs of the Commission, we observed that “ this
Office is neither well-suited nor sufficiently well-versed, as a practical matter,
in the internal workings of the Commission to provide more than a general
response” to the questions being addressed. Memorandum for Reese K. Taylor,
Jr., Chairman, and Heather Gradison, Commissioner, Interstate Commerce
Commission, from Theodore B. Olson, Assistant Attorney General, Office of
Legal Counsel at 1 (Dec. 8, 1983). We think that an apt observation in the Board’s
case as well. Nevertheless, we believe that our discussion of the Board’s organiza­
tion and of the background principles governing deliberative bodies against which
it operates should be sufficient to guide you in resolving disagreements about
the proper balance of authority in the Board’s affairs.

of Legal Counsel, from the Chemical Safety and Hazard Investigation Board (Nov 16, 1999) ( “ November Board
Letter” ); Letter for Randolph D. Moss, Acting Assistant Attorney General, Office of Legal Counsel, from Paul
L. Hill, Jr., Chairperson, Chemical Safety and Hazard Investigation Board (Dec I, 1999) (“ December Hill Letter” ).
Both have agreed to be bound by our opinion See November Board Letter; December Hill Letter at 2.
2 See Warner Memorandum at 18-31, 18 (analyzing specific management and governance areas with an eye toward
“ lirrut[ing] areas o f potential disagreement” ). By this statement, we mean neither to call into question nor to affirm
the specific legal conclusions o f the Board’s General Counsel in this regard

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We begin with the language of the Act. As noted above, the Act provides that
the chairperson “ shall be the Chief Executive Officer of the Board and shall exer­
cise the executive and administrative functions of the Board.” 42 U.S.C.
§ 7412(r)(6)(B). The terms “ Chief Executive Officer” and “ executive and
administrative functions” are decidedly vague, and nowhere does the Act define
them. Even so, the terms do provide some general guidance on the proper division
of authority between the chairperson and the Board as a whole. They make clear
that it is the “ executive” and “ administrative” aspects of the Board’s business —
as opposed to its substantive and policymaking functions as laid out in the rest
of the statute (see id. § 7412(r)(6)(C)-(S)) — that are the province of the chair­
person as chairperson. The chairperson, in other words, superintends and carries
out the day-to-day activities necessary to effectuate the Board’s substantive
decisions.3 He does not, absent some form of Board approval (such as an express
delegation by the Board or the Board’s acquiescence in the chairperson’s actions,
see infra pp. 108-10), make those decisions by himself.
The Act also empowers the Board to ‘‘establish such procedural and administra­
tive rules as are necessary to the exercise of its functions and duties.” 42 U.S.C.
§ 7412(r)(6)(N); see also S. Rep. No. 101-228, at 236 (1989), reprinted in 1990
U.S.C.C.A.N. 3385, 3620 ( “ The Board is given authority to promulgate adminis­
trative rules as may be necessary to carry out its functions.” ). These could include
rules bearing on matters of internal Board governance (such as voting procedures
and the delegation of Board authority and responsibilities) as well as rules gov­
erning the conduct of Board business with the public (such as investigations and
hearings). To the extent the Board establishes such rules, the chairperson, as the
Board’s administrative and executive officer, must put them into practice.
Furthermore, the chairperson is subject in the exercise of his functions and
duties as chairperson to oversight by the Board as a whole and to such general
policies and decisions that the Board is authorized to make. Indeed, that this must
be so flows from the very nature o f the chairperson’s office as the executor and
administrator of the Board’s decisions and policies, which the Board can modify
or amend as circumstances or programmatic objectives require. It is also spelled
out in the A ct’s legislative history, which unambiguously states that “ [t]he chair’s
conduct of the executive function is subject to oversight by the Board as a whole.”
S. Rep. No. 101-228, at 229, reprinted in 1990 U.S.C.C.A.N. at 3613.
To be sure, this does not mean that the Board, exercising its oversight authority
and its powers to make substantive decisions and “ such procedural and adminis­
trative rules as are necessary to the exercise of its functions and duties,” may
or should attempt to address itself to the plethora of minute administrative prob­

3 W ebster’s Third New International Dictionary o f the English Language defines “ execute” as, among other things,
“ to put into effect” and “ to carry out fully ” W ebster’s Third N ew International Dictionary o f the English Language,
U nabridged 794 (1993). It defines “ administer” as, among other things, “ to manage the affairs o f ” Id at 27;
see also W ebster's Ninth N ew Collegiate Dictionary 434 (1986) (stating that “ execute” and “ administer” both
mean “ to carry out the declared intent of another” ).

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Investigation Board and the Board as a Whole

lems bound up with the operation of a complex organization. Some degree of
managerial discretion is inherent in the concept of an executive or administrative
office, and the statutory assignment of the Board’s executive and administrative
functions to the chairperson necessarily vests the chairperson with a degree of
managerial autonomy on which the Board, in the proper exercise of its powers,
cannot trench. Likewise, some day-to-day aspects of Board affairs may be so unre­
lated to the Board’s effective execution of its statutory responsibilities that they
cannot be said to be proper objects of the full Board’s authority. At the same
time, however, any number of Board activities or day-to-day aspects of Board
business, while at least in part administrative and even seemingly mundane, may
involve or affect the Board’s duties and functions in ways that are of legitimate
concern to the Board as a whole. Where that is the case, it is the prerogative
of the Board to pass upon such issues in ways appropriate to its function as a
policymaking and rule-setting body.
Aside from the general delineation of powers, the Act itself does not address,
with specificity or precision, when particular aspects of Board business should
be said to be a legitimate concern of the Board as a whole or, in contrast, should
be left to the chairperson as the Board’s executive and administrative officer. The
Act’s legislative history does state that, while the Board has the power to hire
staff, “ [t]he chairperson of the Board is given authority for directing the work
and assignments of the staff except that each Board member shall be assigned
such personal staff as are necessary to carry out responsibilities of a member.”
S. Rep. No. 101-228, at 229, reprinted in 1990 U.S.C.C.A.N. at 3613. Imme­
diately following this statement, however, is the declaration that “ [t]he chair’s
conduct of the executive function is subject to oversight by the Board as a whole.”
Id. So even when it comes to directing staff work and assignments, the legislative
history appears to contemplate that the chairperson may have to answer to the
Board in some respects. Again, however, the statute does not specify the precise
bounds of the Board’s oversight authority.
In light of the lack of explicit statutory guidance on the issue, we believe that,
under the general principles of corporate common law that we have previously
found instructive in similar cases, the Board as a whole, acting reasonably, has
the final authority to resolve disputes over whether a specific matter is within
its oversight authority or is an administrative or executive concern of the chair­
person or a legitimate concern of the Board as a whole. Our past opinions
addressing governance issues raised by multi-member boards and commissions
have repeatedly recognized that basic and well-established principles of corporate
common law make clear “ that the basic premise governing deliberative bodies
is that the majority rules.” Letter for Mason H. Rose V, Chairperson, United
States Architectural and Transportation Barriers Compliance Board, from Larry
L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel at 2 (Sept.
17, 1981) ( “ Rose Letter” ); see also S. Rep. No. 101-228, at 229, reprinted in

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1990 U.S.C.C.A.N. at 3613 (stating that “ [t]he Board will operate by majority
vote” ).4 In resolving a dispute between members of the Architectural and
Transportation Barriers Compliance Board (“ Compliance Board” ) and its chair­
person over the authority to call an additional meeting of the Compliance Board,
for example, we relied on the majority-rule principle to conclude that the Compli­
ance Board had the authority to call an additional non-emergency meeting despite
the lack of a rule authorizing it to do so. See Rose Letter at 4. We observed
that, given that principle, “ [i]t would . . . be anomalous to conclude that the
Board cannot deal with the situation because the rules are silent” on the issue.
Id. Likewise, on separate occasions, we applied general principles regarding a
board’s authority to act to conclude that both the Federal Home Loan Bank Board
and the Advisory Board of Cuba Broadcasting could meet and conduct business
without a properly appointed chairperson. In both cases we pointed out that, in
the absence of specific statutory prohibitions barring the boards from acting with­
out a chairperson, business transacted at board meetings would be valid so long
as the meetings complied with basic rules of corporate common law governing
notice to and attendance of board members. See Federal Home Loan Bank
B oard — Chairm an — Vacancy— Reorganization Plan No. 3 o f 1947 (5 U.S.C.
App. 1), Reorganization Plan No. 6 o f 1961 (5 U.S.C. App.), 3 Op. O.L.C. 283,
284 (1979); A uthority o f the Advisory Board fo r Cuba Broadcasting to Act in
the Absence o f a Presidentially D esignated Chairperson, 24 Op. O.L.C. 24, 25—
27 (2000). Finally, we noted when passing on an issue concerning the legal
authority o f the National Commission on Neighborhoods to enter into a proposed
agreement that where a statute “ is silent as to [a c]ommission’s internal organiza­
tion, practices, and procedures[, t]he clear implication is that these matters are
to be decided by the members of the [cjommission.” National Commission on
Neighborhoods (Pub. L. 95-24) — P o w ers — Appropriations, 2 Op. O.L.C. 366,
367 n.5 (1977); cf. Memorandum for Tim Saunders, Acting Executive Clerk,
Executive Clerk’s Office, from Richard Shiffrin, Deputy Assistant Attorney Gen­
eral, Office of Legal Counsel, Re: Appointment o f a Chairperson o f the World
War II M em orial A dvisory Board at 2 (Nov. 21, 1994) (noting that, if a chair­
person were appointed to the World War II Memorial Advisory Board, the board
would remain “ free under general parliamentary law to make or amend its own
rules for such matters as conducting business and calling meetings” ). These prin­
ciples, we believe, apply with equal force here.
These principles also undermine the former chairperson’s view that the Act’s
designation of the Board’s chairperson as its “ Chief Executive Officer” signifi­
cantly expands the chairperson’s statutory responsibilities and powers beyond

4W ith regard to these common-law principles, see, e.g., 2 William Meade Fletcher et al., Fletcher Cyclopedia
o f the Law o f Private Corporations §§392, 495 (perm. ed. rev vol. 1998); Robert S. Stevens, Handbook on the
Law o f Private Corporations §§145, 161 (2d ed. 1949); William J. Grange, Corporation Law fo r Officers and
Directors A Guide to Correct Procedure 381-89 (1935), see also General Henry M Robert, Robert's Rules o f
O rder• Newly Revised § 1, at 4, § 43, at 395 (9th ed 1990).

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Investigation Board and the Board as a Whole

those which he might otherwise have (i.e., as simply the “ chairperson” ). October
Hill Letter at 1-2. The term “ Chief Executive Officer” (“ CEO” ) comes from
corporate law. CEOs and presidents of corporations, as a matter of corporate
common law, are “ subordinate in legal authority” to their corporations’ boards
of directors. Grange, supra note 4, at 450; see 2 Fletcher et al., supra note 4,
§495, at 528; Stevens, supra note 4, § 164, at 768. Their specific powers derive
in large part from the resolutions and by-laws passed by those boards and from
the practice and custom of the particular corporation. See, e.g., Grange, supra
note 4, at 451-52 (stating that the “ chief determining factor is the usage of the
particular corporation” and that “ [i]n brief, the president exercises such powers
as he is given by the board, or as he may assume with the board’s acquiescence” );
2A William Meade Fletcher et al., Fletcher Cyclopedia o f the Law o f Private
Corporations § 553, at 14 (perm. ed. rev. vol. 1982) (observing that the powers
of a corporate president may be enlarged by a board’s “ practice of permitting
him to do certain things without objection” ). Thus, while it may not be unusual
for a president and CEO of a corporation to possess substantial authority over
corporate affairs, such.authority exists largely as a matter of the board’s grace
and does not deprive the board of its ultimate authority to manage corporate busi­
ness. See, e.g., 2 Fletcher et al., supra note 4, §495, at 528-29 (a board’s delega­
tion of authority to corporate officers does not mean that the board has abdicated
its authority and does not deprive the board of its stated authorities and respon­
sibilities); Stevens, supra note 4, § 164, at 768 (whatever the precise duties and
powers of a corporate president, “ the authority and duty to manage the corporate
business is vested exclusively in the board of directors” ). Nothing in the Act
suggests that this general understanding of what it means to be a CEO should
not obtain in the specific case of the Board.
We do not agree that the Act provides the chairperson “ with complete authority
over all aspects of the [Board] except that all of the Board Members must vote
on three items: approval of Board Investigation Reports, recommendations to the
Administrator of EPA and the Secretary of Labor, and approval of regulations
to be published in the Federal Register.” December Hill Letter at 1. In support
of that reading, the former chairperson points out that “ [t]he Congress has repeat­
edly segregated these responsibilities through ‘reorganization plans’ of various
multi-member boards and commissions in the past.” Id. But whatever the import
of such reorganization plans,5 the Act itself in no way suggests that the Board’s

5 A large number o f reorganization plans exist, most o f which can be found in appendix I to title 5 of the United
States Code, and we have not examined the provisions of each one in detail However, our bnef review of the
plans has revealed no evidence o f the repeated segregation o f responsibilities o f the sort described in the former
chairperson’s submission. See generally 5 U.S.C app. 1. In fact, such plans are generally intended only to improve
the efficiency of the housekeeping and day-to-day operations o f multi-member bodies by placing primary responsi­
bility for such affairs with a chairperson, not to effect a large-scale transfer o f significant powers and authorities
to the chairperson from the body as a whole. See, e.g., David M. Welbom, Governance o f Federal Regulatory
Agencies 9 (1977) (discussing reorganizations), see also Special Message to the Congress Transmitting Reorganization
Plans 1 Through 13 o f 1950, Pub. Papers o f Harry S. Truman 199, 202 (1950) ( “ [T]hat under these . . . plans
Continued

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chairperson is vested “ with complete authority over all aspects” of Board busi­
ness except the three responsibilities just mentioned. Indeed, as we explain above,
the language of the Act and the general principles of corporate common law
against which it must be read belie that conclusion. The A ct’s legislative history
does mention these responsibilities in the context o f delegation, stating that the
Board “ may (by vote) delegate responsibilities to the chairperson or other
member, except that it shall require a majority vote of the full Board to issue
a report on the cause or probable cause of an accident, make a recommendation
to the Administrator [of EPA] or the head of another Federal agency, or promul­
gate a rule.” S. Rep. No. 101-228, at 229, reprinted in 1990 U.S.C.C.A.N. at
3613. This statement, however, only makes clear Congress’s intent that the Board
not delegate these responsibilities to the chairperson or any other single member.
It does not suggest that these responsibilities are the only ones that are, in the
first instance, vested in the full Board. In fact, by stating that the Board may
delegate all other responsibilities, it suggests the opposite, for the Board could
not make the delegation if those responsibilities were committed to the chairperson
instead of the Board as a whole.
Along similar lines, we do not attribute great significance to the fact that, as
is apparent from the Act’s legislative history, Congress contemplated that the
Board would be “ modeled on the structure, activities and authorities of the
National Transportation Safety Board (NTSB), an independent Federal agency
which investigates accidents in the transportation industry.” S. Rep. No. 101—
228, at 228, reprinted in 1990 U.S.C.C.A.N. at 3612. Even if the chairperson
of the NTSB is the chief moving force on the NTSB and principally responsible
for executing its policies, it does not follow that the Board’s chairperson also
should be understood to have expansive authority over nearly all of the Board’s
affairs. See October Hill Letter at 2; December Hill Letter at 1. The division of
authority at the NTSB upon which the former chairperson focuses is much less
a matter of statutory mandate than it is a matter of the development, through
collegial practice and over time, o f the NTSB’s own internal policies concerning
delegation of authority to the NTSB chairperson, the NTSB’s acquiescence in the
chairperson’s assertion of authority over certain substantive areas, and the general
evolution of the NTSB’s current allocation of responsibilities. See, e.g., Letter
for Randolph D. Moss, Acting Assistant Attorney General, Office of Legal
Counsel, from the Chemical Safety and Hazard Investigation Board at Attach.
1 (Dec. 27, 1999) (discussing development of division of responsibilities at the
NTSB). Indeed, as it existed in 1990, when the Act was passed, the statute estab­
lishing the NTSB stated that “ [t]he Chairman . . . shall be governed by the gen­
eral policies established by the Board, including any decisions, findings, deter­

the commissions retain all substantive responsibilities deserves special emphasis. The plans only eliminate multi-
headed supervision o f internal administrative functioning. The commissionls] retain policy control over administrative
activities since these are subject to the general policies and regulatory decisions, findings, and determinations of
the com m issions.” ).

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Investigation Board and the Board as a Whole

minations, rules, regulations, and formal resolutions.” Pub. L. No. 93-633,
§ 303(b)(3), 88 Stat. 2156, 2167 (1975).6 The legislative history emphasized this
point. “ The Chairman,” it provided, “ is to be the chief executive officer of the
Board, but in acting as such, he is subject to the decisions and policies decided
upon by the entire Board, and it is intended that each member shall participate
actively in all aspects of the executive function.” S. Rep. No. 93-1192, at 43
(1974).
That the NTSB’s chairperson may, as a matter of internal NTSB policy and
longstanding practice, exercise significant authority and influence over many sub­
stantive and procedural aspects of NTSB operations does not dictate that the
Board’s chairperson be allowed to do the same. Had Congress intended that result,
it could have looked to the specifics of the division of authority within the NTSB
in 1990 and spelled out a similar division of authority more explicitly in the Act.
It did not do so. Instead, as discussed above, the Act leaves the Board free to
shape and structure the details of its own internal operations in large part as it
sees fit, and to do so in a practical matter, over time and on a case-by-case basis
as its goals and agenda demand. The Board ultimately may or may not think
it appropriate to follow a course similar to that of the NTSB. In any event, the
Board’s determination of the appropriate division of authority between itself and
its chairperson will of necessity turn on considerations of internal administration
and practical working arrangements within the Board.

RANDOLPH D. MOSS
Acting Assistant Attorney General
Office o f Legal Counsel

6 Al the time of the Act’s passage, the NTSB’s organic statute provided in pertinent part as follows
The Chairman shall be the chief executive officer o f the Board and shall exercise the executive and adminis­
trative funcuons o f the Board with respect to the appointment and supervision of personnel employed
by the Board, the distribution o f business among such personnel and among any administrative units of
the Board; and the use and expenditure of funds . . The Chairman . . . shall be governed by the general
policies established by the Board, including any decisions, findings, determinations, rules, regulations, and
formal resolutions
Pub L No 93-633, § 303(b)(3), 88 Stat. 2156, 2167(1975)

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