Executive Order 13650 Public Listening Session, 

Date: January 14, 2014

Location: GSA’s ROB Auditorium,7th & D Streets, SW, Washington, DC 20407

Introduction and Opening Remarks

• Jack Eisenhauer, Facilitator, introduced the proceedings:

o Welcomed everyone to the listening session and introduced the panel

o Mentioned future listening sessions and Webinars

o Written comments can be provided to eo.chemical@hq.dhs.gov. These comments will 

be included in the docket.

o Announcements:

 Please put phones on vibrate.

 Session is being recorded for note-taking purposes.

 Emergency response information provided.

• Purpose: Provide stakeholders with an overview of the Executive Order 13650: Improving 

Chemical Facility Safety and Security (EO) progress to date and provide an opportunity for the 

public to provide comments, feedback, and suggestions.

• Paul Bomgardner from the Department of Transportation (DOT) was present over the phone in 

listening mode only.

David Michaels, Assistant Secretary Labor, Occupational Safety and Health Administration (OSHA), EO 

tri-chair, provided introductory remarks and summarized the progress of the EO working group:

• The purpose of the session is to solicit comments, best practices, and suggestions from 

stakeholders.

• More than 700 individuals have attended the sessions to date.

• In the wake of the West, Texas disaster, President Obama signed the Chemical Security EO on 

August 1, 2013.

o The members of the working group have come together to execute it.

o Each agency has an important role regarding chemical facilities.

o The Department of Homeland Security (DHS) is responsible for security.

o OSHA is responsible for worker health and safety, including protecting workers at 

facilities and during emergency response times.

o The Environmental Protection Agency (EPA) is responsible for facility safety and the 

protection of human health and the environment.

o Together the focus is to modernize the organization mandates and make significant 

efforts to work cooperatively to support chemical facilities and their workers.

• Each organization has high-level staff at these meetings and takes them very seriously.

o Four sub-working groups are established based on sections of the EO:

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 Sections 3 and 4: Improving Operational and Federal Coordination (co-chaired 

by EPA and DHS/Coast Guard):

• Developing a plan on how stakeholders can work together throughout 

the chemical security sphere

• Exploring how to share explosives materials storage data and Chemical 

Facility Anti-Terrorism Standards (CFATS) data

• An important effort to highlight is the pilot program established in EPA 

Region II on how to improve coordination in the chemical security 

sector. The pilot is looking at: 

o Defining high risk and inspection prioritization among the 

agencies;

o How best to share info with responders and across stakeholder 

groups and Federal agencies; and

o Establishing a unified Federal approach to addressing safety, 

risk, and security at chemical facilities.

• Held a listening session on November 19, 2013

 Section 5: Examine ways to improve collection and dissemination of chemical 

security information (chaired by DHS/IP):

• DHS and EPA have exchanged data on helping to evaluate chemical 

facility compliance with existing requirements.

• Identifying data collection and sharing needs, including developing a 

common taxonomy

• Developing protocols to facilitate information sharing with Federal, 

State, local, and tribal entities

• The goal is to develop a coordinated flexible data sharing process that:

o Is more readily accessible to the appropriate stakeholders;

o Proposes a common way to identify chemicals and facilities to 

properly regulate; and 

o Identifies mechanisms to ensure that information is available to 

those who need it without compromising the facilities providing 

the data.

 Section 6: Modernization of standards and regulations (chaired by OSHA):

• A document is available online at the working group Website that 

provides preliminary options and acts as a starting point for additional 

stakeholder discussion.

• Please provide comments during the listening session and submit 

written comments to the mailbox and the docket.

• Also tasked to improve the storage, handling, and sale of ammonium 

nitrate (AN)

• Created an advisory on how to safely handle and store ammonium 

nitrate

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• On December 3, 2013, OSHA released a request for information (RFI) to 

modernize Process Safety Management (PSM) standards to meet the 

goal of protecting workers by preventing major chemical accidents.

o Comments may be submitted at Regulations.gov, which can be 

accessed from the OSHA homepage.

 Section 7: Establishing best practices and implementation of the Executive order 

(chaired by DHS/IP):

• This group is responsible for holding the listening sessions.

• The main goal is to engage stakeholders to identify, develop, and 

establish best practices.

• All comments can be provided to eo.chemical@hq.dhs.gov.

o Ninety-day deliverables were delayed due to the Government shutdown.

o The milestones are not considered end dates. Each document is considered a living 

document that will be continually updated.

o Some 90-day deliverables will not be available for public review due to being internal 

deliverables.

o A 90-day progress report was recently distributed at the Executive order Website.

Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response, EPA, EO TriChair:

• Stressed that the comments at these sessions are critical for making a strong recommendation 

to the President in May

• Has observed that there is a strong shared interest to improve all areas being considered by the 

EO

• The working group is specifically interested in hearing comments on the follow areas in Section 

6a:

o List of regulated substances in the Risk Management Plan (RMP) and Emergency 

Planning and Community Right-to-Know Act (EPCRA) program to include, but not be 

limited to, coverage of reactive substances

o Expanding inspector training to include best practices in chemical safety beyond 

regulatory requirements

o EPA tools software for first responders, including Computer-Aided Management of 

Emergency Operations (CAMEO)

o Evaluating opportunities to increase worker involvement and labor management 

cooperation in hazards investigations

• The document highlighted that the working group will receive comments during the second 90-

day period in response to the draft policy document. This is the current phase.

• The final 90-day stage is to develop a plan of implementation and to report to the President by 

the end of May.

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Scott Breor, DHS, Office of Infrastructure Protection:

• Standing in for Assistant Secretary Durkovich due to other scheduled events

• Limited vision creates bad decisions. With respect to chemical safety and security, decision 

making affects the entire community of stakeholders.

• We all have a stake, and the Government truly needs public feedback to develop a better report 

and better standard operating procedures to carry out improved chemical safety and security.

• The 90-day fact sheet is a good synopsis of what has been done to date.

• Please go to the OSHA Website and review the information.

• Represents the regulatory piece of DHS. There is a voluntary piece located in DHS as well.

• Invites stakeholders to review the National Infrastructure Protection Plan (NIPP) 2013 located 

on the DHS Website. This document speaks to the framework of how the Government will work 

with the private security to achieve security and resiliency goals.

Commander Jeff Morgan, DHS/US Coast Guard:

• Coast Guard wants to evaluate the comments and statements from the public and looks forward 

to them.

Deb Statkowiak, Department of Justice, Alcohol, Tobacco, Firearms, and Explosives (ATF):

• ATF looks forward to working with its Federal partners here.

• We are looking for best practices in the already submitted comments with the goal of 

establishing best practices.

• ATF regulates explosives manufacturers. Many of them use precursor chemicals in their 

production, so ATF needs to coordinate with the rest of the Government to understand how 

these precursors are regulated.

• The Criminal Investigation Arm wants to help this EO working group better respond to chemical 

safety events and provide help to responders as necessary.

Karis Gutter, U.S. Department of Agriculture (USDA):

• Thanked the stakeholders for their comments

• Looking forward to incorporating comments in collaboration with other Federal partners

Lisa Long, Director of Engineering Safety, OSHA:

• Section 6a called for the working group to develop a list of options related to policy regulations 

and standards modernization in the first 90 days. During the second 90 days, we are scheduled 

to receive stakeholder feedback based on the options submitted. The third 90 days is scheduled 

for the working group to write a report and a plan forward that provides recommendations 

based on feedback.

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• Provided a brief summary of the options document, Executive Order 13650, Section 6.a –

Solicitation of Public Input on Options for Policy Regulation and Standards 

Modernization: https://www.osha.gov/chemicalexecutiveorder/Section_6ai_Options_List.html.

Jack Eisenhauer discussed the listening session format for the rest of the day:

• The goal is to hear a diverse set of opinions and a range of suggestions. Consensus is not 

expected or desired at this session.

• In the event that someone cannot speak or wants to provide additional comments, please use 

the email address at eo.chemical@hq.dhs.gov.

• The day broken into a morning and afternoon session.

• At the beginning of each session, the presenters will be brought to the front.

• Each speaker will state name, organization, and stakeholder group.

• Each speaker limited to 5 minutes.

• After each presentation, the panel may ask clarifying questions.

• Open comment periods will be provided at the end of the morning and afternoon sessions if 

there is time available.

Speakers:

Cynthia Hilton, Institute of Makers of Explosives (IME), remarked:

• Pleased with the progress of the Executive order to date

• She will need time to digest the 6a options paper before offering comments on it.

• IME has provided a detailed list of comments and recommendations but does not have a sense 

where the EO is going with the recommendations.

• Requested that the Government release the Section 4a matrix of programs that addresses the 

needs of community safety and security efforts

• IME provided input but does not have any way of assessing if that information and 

recommendations were recorded. 

• Do not know how to respond to recommendations that are not implemented in policy papers

• Anxious to see the list provided under the Section 6b options

• Comment from Mr. Stanislaus: A large number of options are captured in the 6a policy 

document, and the process of the EO does not replace the rulemaking process. There is 

additional work and opportunities for comments from stakeholders through the phases of the 

EO, the options process, and the rulemaking process. If there are particular documents that 

should be released, please mention specifics, and the Government is more than happy to review 

and comply where appropriate.

o Ms. Hilton thanked ATF for providing information in the progress report that discussed

their plans for information sharing with States and localities.

o Also acknowledged DHS for putting something in writing and pushing it to stakeholders. 

She requested the same of all agencies involved with the EO.

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Jennifer Gibson, National Association of Chemical Distributors (NACD), provided the following 

comments:

• NACD members (400+ companies) demonstrate continuous performance improvement.

• Under Responsible Distribution®, NACD member safety ratings are consistently better than nonmembers’.

• Numerous regulations focus on safe facility operations, and it is a challenge for facilities to stay 

on top of these regulations. This includes OSHA’s PSM; EPA’s RMP; DHS’s CFATS; and DOT’s 

HAZMAT Regulations.

• For the system to work best, regulations must be clear and consistent, and there should be a 

focus on outreach and compliance assistance. 

• A lack of awareness creates issues and tragedies. There needs to be a dedicated effort to make 

sure that all facilities are aware of the regulations and their interpretations.

• Inherently safer technology (IST) regulations will only cause more confusion at this point. Doing 

this now would be counterproductive.

• NACD has serious concerns about the potential mandate for the use of IST, especially if those 

mandates are not clearly defined, may not be achievable, and/or could transfer risk elsewhere 

along the supply chain.

• Regulations and enforcement must be consistent. Often, regulatory compliance is subject to the 

judgment of an individual inspector. 

• While NACD understands the need for sharing information among Government agencies, we are 

concerned about the prospect of having one agency acting as a proxy for another. This could 

lead to additional inconsistency in interpreting regulations. 

• The Government should lead the effort to reach outlier facilities.

o Leveraging industry programs will help address this problem.

• The January 3, 2014 options paper will be reviewed, and comments will be provided, along with 

comments about the OSHA RFI.

• Question from Mr. Stanislaus: In regards to the outlier problem, what do you mean by 

“regulatory recognition”?

o Ms. Gibson’s response: The trade associations can be leveraged to focus on members 

while the Government attempts to locate and reign in outliers.

• Dr. Michaels had a question about the third party audit system under NACD:

o Ms. Gibson’s response: Under Responsible Distribution®, each member has to write and 

implement policies and procedures to satisfy the 13 codes required by NACD in their 

membership guidelines. The verification process entails a visit to the facility, meetings 

with management, and a validation of procedures through inspections and interviews.

 It is a very robust program.

 NACD works to have members succeed, but there have been instances where 

members are asked to leave because they did not meet the requirements of the 

program.

Janette Harlow, Maryland Chemical Company (MCC), commented:

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• MCC is a regulated company and member of NACD complying with the NACD standards.

• Highlight two critical areas to prevent chemical disaster:

o Working together works, and Local Emergency Planning Committees (LEPCs) are 

essential:

 There are no risk-free environments. Instead, how can we manage risk?

 Use what is already in place to promote and ensure chemical safety and 

security.

 Deal with an accident ahead of time by focusing on prevention and emergency 

preparedness.

 This is what LEPCs were created to do.

 No one agency or company can handle a large chemical accident or emergency.

 Frequent meetings; sharing resources; coordinated planning, training, and 

drilling; improving plans; and repeating the process are all necessary to prepare.

 Improving coordination would result in not only improved preparedness, but 

also in identifying outlier facilities.

o Emergency planners need regulatory clarity and certainty.

 Chemical distribution companies are subject to a wide array of regulations 

across multiple sectors.

o Question from Mr. Stanislaus: What are your thoughts on LEPCs and the capacity to do 

hazard analysis?

 Ms. Harlow responded: In Baltimore, the LEPC did not do the hazard analysis

themselves. With the emergency responders’ expertise, risk analysis was 

distributed among multiple stakeholders, including regulatory resources, first 

responders, process engineers from larger facilities, and scientists and chemists.

 Pooling resources across multiple stakeholders has proven to be successful.

o Question from Mr. Stanislaus: How has the Baltimore LEPC been successful in getting 

facility owners to participate where others across the country have had trouble?

 Ms. Harlow responded: Success tends to hinge on having facilities be members 

of trade associations and having them coordinate and communicate with each 

other.

 Trade associations should be leveraged to accomplish facility participation with 

LEPCs.

o Question from Dr. Michaels: Why is the Baltimore situation unique?

 Ms. Harlow responded: There are two other areas that do it well: Kanawha

Valley, West Virginia and the Houston shipping channel. What worked 30 years 

ago was a concentration of chemical producers and public servants engaging 

with sectors. In the case of Baltimore, it was the mayor, the fire chief, and the 

petroleum transfer companies working together to get an organization off the 

ground.

o Question from Mr. Stanislaus: Would you recommend that we issue recommendations 

for using your mutual aid model to be replicated around the country?

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 Ms. Harlow responded: Yes, and I would offer to meet with you at any time. I 

can also bring the mutual aid experts from my community to participate.

Douglas Brown, Brown Chemical, remarked:

• Brown Chemical is a small company and active member of NACD.

• NACD is an information resource.

• The current national regulatory system is robust.

• Thinks that West, Texas was a communication and compliance issue, not a regulation issue

• In terms of modernizing the chemical distribution and regulatory system, recommends

reviewing the current system for clarity in the current regulations before adding new ones

• Also make sure that compliance assistance is a major piece of the regulation system.

• Helpful guidance documents are key in making regulations clear. It:

o Facilitates implementation;

o Promotes effective employee training; and

o Leads to ultimately safer facilities.

• Achieving a risk-free environment, from a practical point of view, is difficult, if not impossible.

o Risk reduction is possible and can be achieved in a variety of ways.

• Caution in that a major shift of regulation could cause less safety and security due to 

organizational change

• Encourages the working group to embrace outreach before establishing major regulatory 

changes

• NACD developed a checklist that assists in regulatory clarity.

• Encourages agencies to reduce complexity in regulations and to reach out to industry, trade 

groups, and LEPCs to assist in this reduction.

• Question from Dr. Michaels: We often hear from stakeholders that they want us to be very 

clear, but without telling them us what to do. How would the facilities feel if a regulatory agency 

were to enforce the 13 codes of management practice produced by NACD?

o Mr. Brown did not have a full answer but rhetorically asked how the firms that are off 

the radar screen can be reached. He followed by stating that NACD can be very effective 

in helping firms understand their responsibilities, but it is more difficult to compel 

people to participate. Guidance to find that help is essential. 

Jose Aguaro, Science Fellow, Center for Health Environment and Justice, commented:

• His area of expertise is community health and engagement.

• Described a number of past chemical disasters over the past 15 years

• All tragedies share something in common:

o Better chemicals could be used; and 

o First responders could have been better trained.

• Federal regulations currently in place are inadequate, and we have a chance to make them right.

• Progressive concepts must be a final requirement in implementation.

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o Quality of the regulations is important, and we cannot afford to set in place mild policies 

that put people at risk.

 Must ensure that a risk is eliminated or reduced to its lowest possible level.

• There will be major opposition from industry because it forces them to change their operations 

and rethink their strategies. They will say that added safety measures would be redundant and 

regulations are burdensome. He urged everyone to think that lives are more important than the 

initial financial investment.

• The President ordered an improvement in the safety of chemical facilities, not because of what 

it would do for our industry, but rather because it is in the best interest to our citizens.

• Question from Dr. Michaels: The previous speaker stated that we need to reach the outliers.

How should we reach those facilities?

o Mr. Aguaro responded: The EO set a tone throughout the Nation, and I don’t think that 

there will be outliers based on what has happened.

 There needs to be a place where companies can approach Government and be 

engaged with the regulatory community. The Internet is the best option for 

distributing this information.

 Mr. Aguaro agrees with others, stating that regulatory requirements need to be 

precise and to the point.

• Comment from Mr. Breor: 6A lays out regulatory areas where the Government is requesting 

feedback. Even if stakeholders, like Mr. Aguaro, are not policy experts, they can still provide 

feedback based on their areas of expertise.

Meeting took a 10-minute break

Peter Lodel, American Chemistry Council (ACC), Chair of Process Safety Committee, commented:

• Regarding reactivity management hazards:

o RFI asked about reactive hazards.

o OSHA has been down this path before. One statement by the Chemical Safety Board

concluded that risk-based regulations are not effective for reactive hazards.

o The ACC suggests a hierarchy of chemicals:

 First level: self-reactives;

 Second level: chemicals that react with ubiquitous substances, such as air and 

water;

 Third level: everything else

o If there is evidence that the first two could be handled with a list rule, then it should; 

however, ACC recommends that the third level be managed by a wide array of pre-existing 

Government and industry tools that are not necessarily regulated. This includes:

 Center for Chemical Process Safety (CCPS) guidelines in “Essential Practices for 

Managing Chemical Reactivity Hazards,” and

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 The National Oceanic and Atmospheric Administration (NOAA) publication of the 

chemical reactivity worksheet. This is the centerpiece for the Center of Chemical 

Process Safety’s reactive evaluation screening tool.

 These tools provide a much more effective way of handling reactive hazards, as 

opposed to a list-based rule.

• Meaning and use of the term RAGAGEP (Recognized and Generally Accepted Good Engineering 

Practices):

o Refers to multiple methodologies and first-principle approaches to ensure that risk is 

mitigated to an appropriate level.

o Good engineering practices go far beyond the application of consensus standards. Although 

the efforts of industry organizations such as the American Petroleum Institute (API), the 

National Fire Protection Association (NFPA), and the Compressed Gas Association contribute 

significantly, no organization can replace a company’s specific engineering and process 

situations.

 The concept of RAGAGEP should be extended to recognize that there is more than 

one way to address safety and security issues, and analysis and evaluation goes far 

behind the application of rote consensus standards.

• Regarding IST and inherently safer alternatives:

o ACC is concerned about the misplaced emphasis on IST, which may distract the working 

group and their report from other important topics.

o There are numerous existing programs which require operators to take a hard look at their 

operation to make it safe and secure. The goal of maintaining a safe and secure facility is 

implicit in analyzing IST.

o Explicit IST mandates are not needed.

o The role of Government needs to be coordinated with industry, which has the knowledge

and technical expertise for properly securing their facilities.

• Question from Mr. Stanislaus: Is it possible for small facilities to take a hard look at the CCPS 

recommendation as well as ACC guidelines? What role can Government play in reaching outliers?

o Mr. Lodel responded: Two things will assist smaller facilities: one, making the 2003 

published central practices book freely available. Many Federal agencies subsidized its cost 

at that time to make that book a free download for 3 years. Two, the NOAA tool is freely 

available to those that may need it. People need to be made aware that it is available and 

usable for no cost.

• Follow-up from Mr. Stanislaus: Can third-party entity structures be expanded to encompass CCPS 

guidelines for getting to smaller facilities?

o Mr. Lodel responded: If it is possible in the Federal regulation, member companies are 

willing to coordinate third parties with facilities and Government to build a proper 

oversight/regulatory product.

• Question from Dr. Michaels: Is there a gap in OSHA standards around reactives?

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o Mr. Lodel responded: There is not a gap, but the extrinsic factors that are not inherent are 

the nominating factor. Site and application-specific factors are difficult to regulate, and 

better guidance on how to manage such extrinsic reactives is important.

Matthew Marshall, E-plan user group representative, Chairman of the Florida Association of HAZMAT 

Responders, remarked:

• Who is going to protect the locals in the event of a major incident? It is going to be the first 

responders.

• Fire marshals should be able to identify and communicate outliers.

• Compliance by industry:

o There are 50 different ways of importing information into E-plan, EPCRA, RMP, DHS, OSHA, 

and many others.

o His solution is to create one online database entry point to ensure the information’s 

accuracy. Database development should be done with the help of industry and first 

responders.

o It should be easy to export into other systems, such as CAMEO, Tier 2 Submit, Excel, PDF, 

KML, and GIS Systems.

o Government should develop a standard entry point for regulated information.

• Information for emergency responders:

o A group should meet with each State agency collecting that data.

o Local responders should be engaged, and the access points and data availability should be

communicated to them at that point. This should done at their sites as well as at 

conferences across the country.

 Social media can also be used to drive the message.

o Create a training schedule to hit all 50 States, starting with regional assets.

 Face-to-face training is the best way to educate about an information database 

system.

• Start with regional assets in distributing information and training.

 This database information and data entry training should be added to federally 

funded training curricula.

 Create an online refresher training and make it available. CAMEO is a great program, 

but if you do not use it within a year, it is easily forgotten.

o Create an open dialogue with local, State, and Federal responders, as well as with industry 

representatives:

 EPA created E-plan, and DHS funded it.

 It currently has 8000 users in 49 States and has 55,000 industrial representatives

who input their data into the Web-based database.

 In addition to RMP and EPRA information, it needs to have other regulatory 

agencies’ information.

 Conferences provide training, and those conferences have excellent attendance.

 This can be done under $1.5 million.

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o As of right now, EPA has fined an average of $130 million per year for the last 5 years, and 

only $44 million has come back for supplemental environmental projects. This should be 

one of those projects.

• Question from Mr. Breor: When talking about standard data point, do you mean a standard 

framework or more global central data repository?

o Mr. Marshall’s response: Both. If this is streamlined into a one-stop shop, it will be easier for 

industry to report the necessary data.

 Having a database input point at one location will mean that only one tool needs to 

be communicated to users. This will also help streamline training.

• Question from Mr. Stanislaus: How can training be improved?

o Mr. Marshall responded: Louisiana State University is currently responsible for CAMEO 

training, and they run out of funds by the third quarter of every year.

o If something gets standardized, there will need to be a ramp-up to appropriately distribute

training.

o E-plan chemical data is presented in an effective way and should be the focus of the central 

access point for the EO.

• Question from Mr. Stanislaus: Should it be a one-time or regular implementation of funding through 

Supplemental Environmental Projects?

o Mr. Marshall responded: It should be a regular implementation to ensure consistent 

funding. The unfunded mandate of LEPCs is a major issue here.

o In Florida, they are lucky. They have funded LEPCs. Eleven have full-time staff people who 

can find information through their searches because they have the time.

• Question from Ms. Satkowiak: Does E-plan have any security considerations for those who are able 

to access the data?

o Mr. Marshall responded: E-plan is a fully secure site that is governed by State and/or local 

jurisdiction, and this is appropriate. It requires a user and login to access the data, and that 

login information can only be provided to the appropriate personnel who have been vetted 

through a process handled by an authorizer role. It is not an open forum.

o E-plan was developed and established by DHS at University of Texas - Dallas

Sophia Plagakis, Policy Analyst, Center of Effective Government, commented:

• Focused on three issues:

• Coverage of additional chemicals and harmonization of regulatory programs:

o One option is to regularly review and select new chemicals through a scheduled rulemaking 

review process.

 Recommend setting a requirement that programs update their required programs 

on a short schedule (2 years, for example)

o Another more expansive option is to use EPCRA’s Tier 1 and Tier 2 hazardous inventory

reporting approach as a model.

 For hazardous materials, facilities will need to keep material safety data sheets on 

file for those specific chemicals above set thresholds:

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• 500 pounds for extremely hazardous substances

• 10,000 pounds for other generally hazardous chemicals

o Using a similar approach to EPCRA’s hazardous inventory reporting will harmonize EPCRA 

with the Risk Management Program to ensure that the broadest lists of chemicals of 

concern, types of hazards, and facilities are covered in a consistent manner.

• Implementing Federal requirements for inherently safer technologies:

o Five principles to guide the implementation of an IST standard for chemical facilities:

 Transparent and comprehensive in scope

 Clear deadlines in reporting requirements

 Sufficient violations and penalties for facilities that do not meet requirements

 Public measurements for determining the program’s success

 Process for front-line workers, their representatives, and their communities to 

participate and provide input

o Many programs can be used as an example:

 EPA’s Maximum Achievable Control Technology Standards (MACT Standards): This 

general approach may be adapted to address chemical plant safety standards.

 Corporate Average Fuel Economy (CAFE) Standards: Regulators could establish a 

model that establishes a chemical safety score for facilities based on a variety of 

measurements, and this could be used as a standard to help facilities improve 

without prescribing specific change.

• Proposed policy options fail to include communities located around chemical facilities.

o Most of these communities have a unique understanding and access to a great deal of 

information about the chemical facilities in their communities; however, they have minimal 

outlets to provide that information.

o More consideration needs to be given for how facilities affect these communities, how 

communities can provide information about facilities, and how communities can assist with 

the community-facility relationship.

Dr. Darius Sivin, United Auto Workers, remarked:

• In regards to worker participation and protection against retaliation:

o Thanked EPA and OSHA for attempting to implement the intent of their existing regulations

o Encouraged DHS to improve worker participation in CFATS and to look at the Chemical 

Facility Anti-terrorism Act as a model. This passed the House in 2009 and included a number 

of provisions for worker participation.

o Whistleblower regulations do not function as well as they should.

o Agencies should write into their standards that policies and practices that discourage the 

reporting of hazards, injuries, and/or that promote retaliation against folks who do report 

such hazards/injuries are violations against the chemical safety standards and are citable 

and could incur penalties.

• Regarding RMP and PSM harmonization, I have visited reading rooms and have seen in some RMP 

reports that a release could affect zero people because only offsite consequences are considered.

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o Encourages EPA and OSHA to account for both onsite and offsite people when a release 

occurs

• In regards to inherently safer technologies:

o The EO directive describes how the existing standards are not adequate.

 As Charles Perrow writes in Normal Accidents: “If you have complex systems, failure 

is sometimes inevitable. The only thing we can do about that is to reduce or 

eliminate the hazardous materials we are using.”

o Many alternatives exist that will reduce or eliminate risks, and these should be better 

promoted, including the insurance requirement when threshold policies are exceeded.

o Promoting safer technologies through trade associations is not the way to go because these

programs do not reach outliers. In addition, there are still many releases that occur among 

members of these associations.

o One definition that could be adopted is from a National Research Council publication 

entitled The Use and Storage of Methyl Isocyanate (MIC) at Bayer CropScience. The inherent 

approach to hazard control is to minimize or eliminate the hazard—for example, by 

replacing a flammable solvent with water to eliminate a fire hazard—rather than just

accepting the hazard as a fait accompli.

 In terms of using cost benefit analysis:

• Cites Professor Sundstein, who doubts its effectiveness in the cases of low 

probability/high consequence events

• Question from Dr. Michaels: What sort of practices are discouraged when whistleblowers report

hazards and hazardous events, and how can these be addressed using regulation?

o Dr. Sivin responded: Interviews of the workers on the Deepwater Horizon suggested that

there was an atmosphere of intimidation in that people did not feel free to come forward 

and report potential problems.

• It is hard to address. Perhaps the agency can cite a consistent finding that 

supervisors have threatened or retaliated against workers who have 

reported hazards.

• Question from Dr. Michaels: All whistleblower regulations are based on actions taken against 

individuals. Beyond that, what would you like to see in citations, penalties, etc.?

o Response from Dr. Sivin: The Government should move to citing situations where there are

pervasive practices of disciplining folks who report accidents outside of their facilities. It 

should be written into the regulation standard.

• Question from Mr. Stanislaus: Are you suggesting that the Government be more specific about 

employees’ hazards reporting? 

o Dr. Sivin’s response: In the 2009 Chemical Facility Anti-terrorism Act, there are provisions 

for worker participation in safety planning. It is not just about reporting hazards; it is also 

about including employees and their representatives in planning to make the facility safer.

• Follow up from Mr. Stanislaus: What role should the Federal Government play in utilization 

insurance?

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o Dr. Sivin’s response: The Government should function as one of many tools when there is a 

known hazard associated with a specific substance and a known substitute (e.g., ammonium 

nitrate and urea, respectively). AN is less expensive to use than urea, but it causes a higher 

potential social cost in a catastrophe. By using social cost (insurance requirements being the 

example here), the Government can make using the more hazardous chemical more 

expensive, thereby leveling the playing field and pushing facilities toward safer technologies.

Morning Open Session

Cynthia Hilton, IME, commented:

• Wants to clarify some facts regarding the 6a options paper:

o Explosives make the rest of the economy productive. Many other industries rely on 

explosives materials that IME members make.

o IME companies produce:

 98% of nations high explosive

 The majority of blasting agents and oxidizers

 65% world’s supply of oil perforators

 Upwards of 75% of AN consumed in the United States

• Based on this perspective, she asked who wrote the 6a options paper questions.

o Under the AN section, it asks about lowering screening thresholds.

o At the November 14 listening session, IME stated that the AN used in the explosives industry 

is the same chemical combination of AN that the agricultural industry uses.

 They are both 5.1 oxidizers. The only difference is the density. In a fire you cannot 

tell the difference.

 There is no commercial form of AN that is classified as an explosive.

o There are no Division 1.1 explosive AN products.

 Exactly what does the working group mean when they use the term “explosive AN 

products”?

• In the 6a paper, the working group asks about safer alternatives regarding AN.

o AN is the safer alternative for the explosives industry beyond nitroglycerin and other such

products.

o IME exists to develop safety and security standards for the industry.

 This is established through IME’s safety library publications or standard operating 

procedures. 

 The International Association of Fire Chiefs has endorsed these AN practices.

o Asked why IME standards and best practices could not be adopted for chemical trade 

groups

o IME wants the Government to adopt its standards. Everyone should follow safety standards 

across the chemical industry.

• Question from Dr. Michaels: Please elaborate on why you think that 1910.109 (OSHA’s explosives 

and blasting agents regulation) is great.

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o IME does not know of any accidental detonation of AN by anyone who has been compliant 

with the PSM standard.

o IME has recommended a few enhancements to the standard recently and hope they will be 

considered.

o Seven or so years ago, IME petitioned a full update to the standard, and they hope that this 

update will still be completed.

o It is a “wonderful” standard, but IME still thinks it needs updating.

• Ms. Hilton continued because there were no other speakers. She discussed additional pieces in the 

Section 6 guidance paper:

o Under the explosives section, ATF asks if collaboration is needed:

 IME welcomes all opportunities to collaborate with ATF.

 They did collaborate on IME SOP 28: Recommendations for Accountability and 

Security of Bulk Explosives and Bulk Security Sensitive Materials.

 They are confused why that question about lowering AN screening thresholds was 

asked in the paper in light of IME SOP 28.

Afternoon Scheduled Session

• Jack Eisenhauer opened the afternoon session:

o Some panel members had to leave for the afternoon.

o Introduced the Agency representatives for the afternoon :

 David Michaels returned for OSHA

 Barry Breen replaced Mr. Stanislaus for EPA

 Dave Wulf replaced Mr. Breor for DHS/IP

 Commander Jeff Morgan returned for the USCG

 Deb Satkowiak returned for ATF

o Re-established the ground rules. There were no changes from the morning session.

Speakers

Kent Anderson, Chairman of the Board for the Ammonia Safety and Training Institute (ASTI), remarked:

• Partnerships in dealing with these chemical safety and security issues are absolutely critical. It is 

very difficult to do, however.

• Putting together coalitions of organizations that have different agendas takes a lot of time, but 

when it works, it works very well.

• ASTI focuses specifically on ammonia because the number one chemical in the RMP universe is 

ammonia. Chlorine is the second.

o 9000 of the 12,000 facilities are ammonia-related.

• Ammonia is the number one hazardous chemical reported to the National Response Center (NRC).

They have a lot of releases.

• ASTI’s mission is to make ammonia the safest risk-managed hazardous material in the world.

However, it is a lifetime job that will never be completed.

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• The goal is to improve the relationship between first responders and other stakeholders.

o Do this with lessons learned safety days that include Federal Government representatives 

and the local fire services

o Mines RMP database consistently for accidents

o Through equipment failure and human error, valves and pipes are the typical causes of and 

reasons for ammonia accidents.

• Restarting the security and safety framework would take too long. We need to focus on what we 

have and improve it through coordination and communication.

• We have been arguing IST for decades. If decisions at the White House are based on political or 

policy decisions from the EO report, then we are going down the wrong road.

• The Government needs to go back around the tree and re-evaluate many things they already do.

• Focus on intra-agency and interagency fixes first.

• Small facilities are having a difficult time keeping up with the regulations. They do not read the 

Federal Register, and the regulations are long and complex.

o The Government needs to make the regulations simpler and more straightforward if 

possible.

• Comment from Dr. Michaels: I request that you play an active role in the PSM RFI effort by providing 

ways that facilities can comply with the regulatory efforts and how the Government can close gaps.

o The refrigeration industry relying on the ammonia industry got caught flat-footed on PSM 

regulations.

o ASTI put together guidance, and eventually Federal inspectors starting using it. This is now

considered a best practice.

o Also states that most basic regulations OSHA have for ammonia are outdated. The standards 

are based on the 1970s version, and ANSI has been revised five times since then.

 The Government needs to determine how to keep their standards more up-to-date.

Charlotte Brody, Vice President for Health Initiatives for the Blue Green Alliance, remarked:

• Called attention to the California interagency working group on refinery safety. It is developing a 

program that can provide examples of similar options.

o They, along with many others, are participants in the process.

o Some of the options they are looking into include:

 Requiring inherently safer systems to the greatest extent feasible

 Developing new funding mechanisms that are chemical facility fee-based

 Enhancing enforcement capacity to include more inspectors who are better trained 

and better paid

 Periodically performing safety culture assessments

 Requiring the incorporation of damage mechanism hazard reviews into Process 

Hazard Assessments

 Completing root cause analyses after significant accidents or releases, including 

explicit accounting of human factors

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 Improve public input during emergency planning and enhance information alerts 

and outreach during emergencies

 Creating a task force that can really explore the safety case approach

• Believes that the fundamentals that undergird the safety case are the same pillars that would hold 

up any truly effective safety management system

• Called attention to Federal Aviation Administration’s (FAA) Aviation Safety Action Program (ASAP):

o ASAP protects worker confidentially and prohibits retaliation against workers reporting 

safety violations.

o Creates tripartite consensus system of decision making between worker representatives, 

management, and the Government for how to handle safety violation reports

o There is strong reputational and financial motivation for airline companies to participate.

• Need to change the rules and economics enough to make chemical facilities understand that it is in 

their self-interest to have a better safety standard

o OSHA’s illness and injury prevention programs could be revamped under a similar structure.

• To implement safer alternatives using OSHA’s own online toolkit to move toward safer alternatives 

and emphasize training, workers and employees should use these methods, including ChemHAT.

• Question from Dr. Michaels: What is your evaluation of the Contra Costa experience?

o Ms. Brody’s response: It is a partial success. Where it has not succeeded shows us which

safety cases need to be adapted to U.S. realties to make it work. The safety case in Newark 

hinges on safety personnel having the knowledge and the proper pay so that they do not 

jump jobs for better opportunities. Workers do not have needed confidentiality protection 

and absolute protection from retaliation, as exemplified in the safety case that works best. 

The people who manage those facilities do not have the same financial or carrier-building 

motivation to do what is being done in other countries.

Rick Hind, Legislative Director, Greenpeace, remarked:

• Centered his comments on the five criteria identified in the policy options paper

• The Center for American Progress has produced a battery of reports on which facilities have 

successfully moved to inherently safer technologies and have thereby reduced the potential for

catastrophic risk.

o Looking at RMP data, there has been a steady increase of facilities in the RMP program. 

Since 2009, there has been an increase of about 300 facilities, especially in the risk zone 

range of 10,000 to 99,000 people.

o 473 facilities each put 100,000 people at risk overall.

o Without duplicating these vulnerability zones, 110 million people are at risk.

o Clorox is a good example of one of the companies that stepped up and converted its

facilities. It was good for their business. There are economic reasons for doing the right 

thing.

 It supplied them with a much lower liability.

 Risk Management Solutions estimated that a chlorine disaster would cause a $7 

billion liability. Switching to high strength bleach removes this risk.

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• IST is not a sacred term. The important thing is that consequences can be reduced or eliminated by 

moving to inherently safer technologies. You cannot prevent a facility from being attacked or 

completely from having an accident, but you can mitigate the consequences.

• In the options paper, the Government asked about unintended consequences.

o In the ideal world that’s a great idea; however, we cannot rely on trade and industry groups 

to implement inherently safer technologies. They have lobbied against many of the 

measures that require implementation for decades.

 Requirements are needed to force the acceptance of safer alternatives. However, 

even in the case of New Jersey, where less stringent requirements are established, 

the highest risk facilities have still not converted.

• Called for strengthening of the Clean Air Act General Duty Clause

o EPA can do more with Section 112(r)7A.

• We can use the Risk Management Program to make a finding for OSHA to assign these facilities a 

recognized hazard.

• Question from Dr. Michaels: The previous speaker referenced previous IST implementation. Do you

have experience with IST implementation in other countries?

o Mr. Hind’s response: Ms. Brody’s suggestion for doing an analysis on appropriate 

international implementation of IST would be a good step.

o Establishing a hierarchy of ever-increasing safety is important.

o For some facilities, reduction of risk may be all that is viable under certain conditions.

o Greenpeace supports a concept of “those elements that are feasible.”

o Holland has ended all transport of chlorine. 

o The French also took action after the Toulouse disaster.

o In the Greenpeace December written comments, we included language on methods to 

reduce consequences, drawing from a section of HR 2868, a definition of the National 

Contingency Plan, and a Congressional Research Service analysis.

o Also submitted EPA’s 2002 proposal that the White House killed

o Also submitted a detailed APA petition that was submitted to EPA in July of 2012 that 

explains the opportunities in the Clean Air Act to make these opportunities a reality.

• Question from Mr. Breen: What year did the Congressional Research Service produce their reports?

o Mr. Hind’s response: It was not a CRS report. They were analyses for members of Congress 

in 2009, 2011, and 2012. The reports were produced for Senate and House consumption 

and were not publicly produced reports.

o They broke down the RMP universe to ranges of people at risk.

o Senator Lautenburg’s office requested the 2012 report.

John Gustafson, LEPC Montgomery County, Maryland, commented:

• Thanked the panel for what he called one of the best series of citizen involvement listening sessions

he has seen

• Spoke on the importance of interagency coordination:

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o Based on 40 CFR Part 300 of the National Contingency Plan, all of the EO Federal agencies 

are involved in it. He said that we all come from large agencies, but the responsibility to 

create safety and security falls across all of us in many different ways.

o People should seek out the other sides of their own organizations for a greater

understanding beyond what they just do.

o National Response Team has six committees ranging across many concepts, but there is 

nothing in the Plan that deals specifically with prevention. This falls on the Federal agencies.

o At one point, there was a discussion to bring together a committee that would coordinate

inspectors, getting to know each other’s requirements, etc.

• The overall system needs revitalization.

o He presented and submitted diagrams to the working group describing the roles and 

responsibilities of many of the stakeholders involved in chemical safety and security.

o The system is robust, but it needs some help. This working group is in an excellent place to 

do so.

• Dr. Michaels thanked Mr. Gustafson for his prior work and for calling the attention to the work that 

the Government already does.

David Halperin, attorney and consultant to Greenpeace, commented:

• Is part of the Coalition to Prevent Chemical Disasters

• For years the Coalition has urged the Government to take action and force movement to inherently 

safer technologies, materials, and processes.

• Terrorists add another level of urgency for making facilities comply with movement to safer 

technologies so that attacks can be limited in their disaster potential.

o In 2003, a chemical panel warned that chemical plants in the United States could be targets 

for Al-Qaeda.

o Media investigations pointed out that many of these facilities had high-risk tanks unguarded 

and acting as very exposed targets.

o The EPA has found that more than 470 chemical facilities in the United States put 100,000 

people or more at risk for a chemical release disaster.

• Chemical security and safety is a national security issue, as stated by the White House.

o President Obama, as a senator, referred to chemical plants as stationary weapons of mass 

destruction spread all across the country.

o The Government and all stakeholders need to treat this as a national security issue.

• Wrote an op-ed 10 years ago with Rick Hind that called out these same issues. Many of these 

problems remain.

• Said that the Government is not treating this with enough urgency

• The bigger challenge is political due to the chemical industry’s lobbying money driving the discussion 

in untenable directions.

• The Government must recommend decisive action.

Afternoon Open Session

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John Gustafson, LEPC Montgomery County, Maryland, remarked:

• A survey identifying active LEPCs should be done again. It was last done 4 years ago.

o George Washington University has done the survey in the past.

o Is there a way to coordinate non-governmental organizations (NGOs) to do it with Federal 

funds?

• Update NRC-1 (The Orange Book). It is the only statutory guidance in EPCRA. It has not been 

updated in 5 years. The people who used to update it have retired.

• NRC meetings should include a section on presentations and results coming from the EO working 

group.

o Attorneys from the various enforcement arms need to coordinate to provide consistent 

guidance. This will make sure that commonalities are understood and provided.

o DOT monies should be set aside for training and should be expanded if necessary. It is the 

only money left; EPCRA monies are gone, and Superfund money is gone.

o Cross-training was cancelled last year. This should be reversed and picked up by another 

agency if possible.

Kent Anderson, ASTI, remarked:

• Discussed emergency planning and response

• All the EO agencies are involved in different aspects.

• ASTI runs drills for facilities and first responders. During the drills, each facility is requested to bring 

in local fire departments and call the NRC as a simulation.

o In one case, a simulated call was made, and the discussion was conveyed poorly. Doing the 

drill taught people a lot.

o A dummy call for a fire department should be made as well. The fire chief will use a stop 

watch and time how long it will take the fire trucks to show up.

o The drills also demonstrate the difference between the fire department standard teams 

versus HAZMAT teams. Even if a fire department team can get there in 3 to 5 minutes, they 

may not have the correct equipment, and the ones that do, the HAZMAT teams, are 30

minutes away.

o Had a motto: “If you don’t know, don’t go.”

• There are many things that inhibit the ability for companies to set up emergency response plans,

including current regulations.

o PSM and RMP require facilities to have an emergency response plan; however, a full blown 

response plan may trigger additional costs, regulations, or documentation. Many 

companies’ emergency response plans are simple and pass the buck to the fire department 

and other emergency responders. The best example is evacuating the building and having 

local emergency response deal with it, but not coordinating training because that would 

cause extra paperwork.

• This is a good opportunity to go back in and weed the garden.

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• Can regulations be reoriented to provide incentives to facilities to push them to do what the 

Government wants them to do, as opposed to making it harder to do so?

Charlotte Brody, Blue Green Alliance, remarked:

• Picked up on comments from the previous speakers

• In favor of harmonization, with two caveats:

o Simplification does not mean weakening but actually means strengthening

o It should focus on the vision of the Executive order.

• They learned from ChemHAT that information on the existing Website is effectively buried. It is hard 

for the lay person to find information.

o This kind of information needs to come first under harmonization.

o What is dangerous, why, and how can we protect the community first?

• Exemption for OSHA Voluntary Protection Program (VPP) inspections should be ended, and retail 

establishments should be included.

• We can move to inherent safety by thinking about where there is money for pilot projects that test 

alternatives. This provides an incentive for facilities and companies to start looking at solutions.

• Dr. Michaels provided a follow-up: It’s easy to say a facility is an outlier because it blew up. A 

question to the audience, in the comments for section 6, is if you would be interested in a better 

definition of what an outlier may be.

Kent Anderson, ASTI, commented:

• Referenced HR 2868: Drone Aircraft Privacy and Transparency Act of 2013

• Disagrees with a past speaker. Although not all accidents can be prevented, catastrophic 

consequences can be preventable.

• The focus on emergency response should be making sure that first responders have all of the 

resources they can get.

o In New Jersey, it was found that firefighters would need to call upon resources from other 

counties. If we can prevent the possibility of a catastrophic event, we reduce the need for 

resources dealing with catastrophic events.

o The problem we have is a scarcity of resources.

• If industry continues to state that they cannot change and that accidents, disasters, and 

catastrophes are inevitable, then instead of taxing the public, we should be taking the money from 

the current record facility profits and redistributing it through a fund to emergency responders and 

the victims’ families.

• The Government’s responsibility is protecting people and property in the case of chemical disasters 

and their effects.

Closing Comments

• Jack Eisenhauer closed the meeting:

o Said the next session will be in Houston on January 24

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o A docket will be established for today’s notes.

o The Website for the working group is www.osha.gov/chemicalexecutiveorder/index.html. 

o Comments that have specific suggestions on how to improve the EO implementation are 

welcome and should be sent to eo.chemical@hq.dhs.gov.

• Dr. David Michaels provided closing comments:

o We have found this session very useful. We thank you for your comments.

o We are grateful especially to those who remained here throughout the day.

o Thank you to our facilitator Jack for doing a great job.

o We are committed to improving the safety of chemical facilities.

EO 13650 Public Listening Session Page 23

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Participant Analysis 

Stakeholder Group

1/14/2014 

Washington, 

D.C.

Chemical Producer 6

Ag Supply 0

Chemical Storage 3

State/Local Regulator 0

First Responder 2

Media 1

Owner/Operator 3

Industry Association 12

Labor Organization 3

Federal Representative 16

Environment/Community 5

Consensus Organization 0

Other: 4

Citizen 0

Education 1

Security 0

Vendor 0

State/Local 0

Tribal 0

Health/Research 0

TOTAL

(Attended In-Person) 56

Conference Call 93

Attended (InPerson & Conf Call) 149

EO 13650 Public Listening Session Page 24

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Executive Order 13650

Improving Chemical Facility Safety and Security

January 14, 2014 Public Listening Session 

Hosted by the Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), 

and the Department of Labor (DoL)

Location: GSA’s ROB Auditorium, 301 7th Street SW, (7th & D Streets), Washington, DC 20407

Agenda 

8:00 a.m. – 9:00 a.m. Registration

9:00 a.m. – 9:25 a.m. Welcome, Introductions, and Overview

Jack Eisenhauer, Facilitator

David Michaels, OSHA, Executive Order 13650 Working Group Co-Chair

Assistant Secretary of Labor, Occupational Safety and Health 

Administration

Mathy Stanislaus, EPA, Executive Order 13650 Working Group Co-Chair

Assistant Administrator, Office of Solid Waste and Emergency Response

Dave Wulf, DHS/ Office of Infrastructure Protection

Deb Satkowiak, Department of Justice/ Bureau of Alcohol, Tobacco, Firearms 

 and Explosives 

TBD, DHS/ United States Coast Guard (USCG) 

 Karis Gutter, Department of Agriculture (USDA) 

9:25 a.m. – 9:50 a.m. Overview of Section 6 a

Lisa Long, OSHA 

9:50 a.m. – 10:10 a.m. Listening Session Format

Jack Eisenhauer, Facilitator

10:10 a.m. – 4:20 p.m. Comments from Listening Session Participants

4:20 p.m. – 4:30 p.m. Closing Remarks 

 

 David Michaels, OSHA, Executive Order 13650 Working Group Co-Chair

Assistant Secretary of Labor, Occupational Safety and Health 

Administration

4:30 p.m. Adjournment 

Persons may also submit written comments to NPPD/ISCD/Mailstop 0610, Department of Homeland 

Security, 245 Murray Lane, SW, Arlington, VA 20598-0610. Comments will also be accepted by email 

at: EO.Chemical@hq.dhs.gov or through the Federal eRulemaking Portal 

at http://www.regulations.gov. For more information on EO 13650, please 

visit https://www.osha.gov/chemicalexecutiveorder/index.html

and https://www.dhs.gov/topic/chemical-security.