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20–361 PDF 2016

S. HRG. 113–809 

OVERSIGHT OF THE IMPLEMENTATION OF THE 

PRESIDENT’S EXECUTIVE ORDER ON IMPROVING 

CHEMICAL FACILITY SAFETY AND SECURITY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

& 

HEALTH, EDUCATION, LABOR 

AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

DECEMBER 11, 2014 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS & 

HEALTH, EDUCATION, LABOR AND PENSIONS 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 

(III) 

C O N T E N T S 

Page 

DECEMBER 11, 2014 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 3 

Markey, Hon. Edward, U.S. Senator from the State of Massachusetts .............. 8 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 9 

Casey, Hon. Robert P., U.S. Senator from the State of Pennsylvania, prepared 

statement .............................................................................................................. 114 

WITNESSES 

Michaels, David, Ph.D., Mph, Assistant Secretary of Labor for Occupational 

Safety and Health, U.S. Department of Labor .................................................. 12 

Prepared statement .......................................................................................... 15 

Responses to additional questions from: 

Senator Boxer ................................................................................................... 26 

Senator Markey ................................................................................................ 27 

Senator Casey ................................................................................................... 32 

Senator Murray ................................................................................................ 38 

Senator Enzi ..................................................................................................... 42 

Senator Hatch ................................................................................................... 44 

Senator Roberts ................................................................................................ 45 

Stanislaus, Mathy, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency ................................. 47 

Prepared statement .......................................................................................... 49 

ADDITIONAL MATERIAL 

Statement by IME, Institute of Makers of Explosives ......................................... 110 

(1) 

OVERSIGHT OF THE IMPLEMENTATION OF 

THE PRESIDENT’S EXECUTIVE ORDER ON 

IMPROVING CHEMICAL FACILITY SAFETY 

AND SECURITY 

THURSDAY, DECEMBER 11, 2014 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, AND

COMMITTEE ON HEALTH, EDUCATION, LABOR AND PENSIONS

Washington, DC. 

The committees met, pursuant to notice, at 9:31 a.m. in room 

406, Dirksen Senate Building, Hon. Barbara Boxer and Hon. Robert P. Casey (co-chairs of the committees) presiding. 

Present: Senators Boxer, Markey, Vitter, Barrasso, Crapo, 

Boozman, Franken, Bennet and Murphy. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Welcome to the Environment and Public Works 

Committee. 

As usual, we are on a horrible schedule. This is such an important hearing and I am so pleased that you are here. 

The Environment and Public Works Committee is joining with 

the Committee on Health, Education, Labor and Pensions. Senator 

Casey is coming shortly at about 10 a.m. to continue the hearing. 

My situation is that right down the hall at 10 a.m., my Foreign 

Relations Committee is holding a markup on a bill to confront ISIS, 

whatever you call it. We have to confront them so I will have to 

leave at 10 a.m. 

I will have a half hour with you and then Senator Casey will 

have his time with you. 

Why are we here? In April 2013, a massive explosion at a fertilizer distribution plant in West, Texas killed 15 people, injured 

hundreds more and damaged or destroyed homes, businesses and 

three unoccupied schools. 

Chemical facilities can be a threat to communities, including 

schools, across our Nation. A recent report by the Center for Effective Governance found that one out of three school children in 

America today attend a school within the vulnerability zone of a 

hazardous chemical facility. 

I want to repeat that. One out of three school children in America today attend a school within the vulnerability zone of a hazardous chemical facility. As many as 10 million children go to 

school under the shadow of two hazardous zones. 

2 

If we believe what we say about the safety of our kids, keep that 

in mind. Ten million children go to school under the shadow of two 

hazardous zones and one out of three kids attends schools within 

the vulnerability zone of a hazardous chemical facility. 

After the disaster in West, Texas, I spoke with President Obama 

about the need to act. On August 13, he issued Executive Order 

13650, Improving Chemical Facility Safety and Security. 

This Executive Order established a working group to conduct a 

comprehensive review of our chemical safety and security programs 

and develop recommendations for improving these programs. 

There is a lot of talk about President Obama issuing too many 

Executive Orders. He has issued the least of any modern President. 

In the 602 days since the West, Texas tragedy, there have been 

355 chemical accidents, resulting in 79 deaths and 1,500 hospitalizations. That is according to Chemical Safety Board data. You 

can see on the chart where these occurred. 

In my home State of California, we have had 23 chemical incidents and 96 people have been hospitalized. I am very concerned 

that despite the clear risks posed by our Nation’s chemical facilities 

that very little progress has been made. 

The Executive Order directed 15 actions be taken, including proposing changes to safety measures for ammonium nitrate, proposing changes to the list of chemical hazards under EPA’s program to reduce the risk of chemical accidents and providing more 

information to our brave first responders and accident investigators. 

Of the 15 actions directed by the Executive Order, only four have 

been completed. Six actions will not be complete until 2015 or later 

and five have no time line at all. No agency has proposed changes 

to its chemical safety program and not a single facility faces new 

Federal requirements to adopt safety precautions to reduce chemical hazard. 

You can see the list of what the orders are and out of all of them, 

only three have been completed. This seems to be going on, I say 

to my colleagues, over and over. 

One chemical that I have expressed concern about over and over 

is ammonium nitrate which was the cause of the West, Texas accident and was a key ingredient used in the Oklahoma City bombing 

and the 1993 World Trade Center bombing. 

In response to a GAO request submitted by Senators Casey, 

Murray, Representatives Miller and Courtney, and myself, GAO 

said that Federal regulation of ammonium nitrate contains gaps 

that may make certain facilities unsafe. 

The Chemical Safety Board reached similar conclusions and said 

EPA should address ammonium nitrate under its chemical safety 

standards. According to the Chemical Safety Board, the West, 

Texas accident could have been prevented had all those measures 

been in place. 

Although an update to a 1997 Safety Advisory on ammonium nitrate was issued in 2013, more action needs to be taken. 

Although the working group established in the Executive Order 

has convened months of meetings, its June report merely recommended more meetings and more information gathering. The 

time for meetings and deliberations about chemical safety is over 

3 

and we need measurable, meaningful action to improve protection 

for workers, first responders and local residents. 

I hope to hear from our witnesses a renewed commitment to 

quickly finalize and implement key safety improvements so that we 

can avoid another tragedy like the one in west Texas. 

With that, I call on Senator Vitter. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Madam Chair. 

I want to thank you and Chairman Harkin for convening this 

hearing today. 

The chemical industry is incredibly important to not just my 

home State of Louisiana but to our Nation as a whole. 

Before I continue on with this statement, I want to note that 

today Senator Inhofe and I sent a letter to our EPA witness on this 

very subject. I would like to enter that into the record. 

Senator BOXER. Without objection, so ordered. 

[The referenced information follows:] 

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Senator VITTER. When tragic accidents like the explosions in 

Geismar and Donaldsonville, Louisiana take place, it is critically 

important that they are thoroughly and expeditiously investigated. 

Genuine effort must be put forth to understand their causes and 

we must strive to prevent similar accidents in the future. 

Immediately following the explosion in Geismar, I requested that 

the Chemical Safety Board dispatch a team to Louisiana which 

they did. I appreciate their work and the updates on their work. 

It is secret that chemical manufacturers spend billions of dollars 

annually in safety, health, environmental and security programs 

through initiatives like American Chemistry Council’s Responsible 

Care. 

Others in the regulated community have initiatives like the fertilizer industry which just this week launched such an initiative. 

Despite all of this work, nothing comes without risk and there 

have been tragic, tragic accidents. Whenever they occur, it reminds 

us that we must all collaborate and we must all do better. 

Today, we are here today to discuss President Obama’s Executive 

Order 13650, Improving Chemical Safety and Security. Unfortunately, I believe that many of the actions being contemplated as 

part of this order may actually result in outcomes contrary to our 

collective goals. More specifically, they may result in less compliance with the law and less safety at sites. 

To quote a previous committee witness who testified on this very 

issue, Rick Webber from the Ascension Parish Office of Homeland 

Security, ‘‘I cannot emphasize enough that all disasters are initially 

local.’’ 

In Louisiana, we are fortunate to have robust local emergency 

planning committees which Mr. Webber called ‘‘the most critical 

function that a community can perform to prevent, mitigate and respond to and recover from an industrial accident.’’ 

I believe that before we create any new complicated Federal 

mandates, which in many cases create problems and don’t just fix 

problems, we need to better understand what problems we are trying to solve. We need to make sure we are giving folks within local 

communities the tools they need to ensure safety. 

Given that a great deal of our committee discussions have centered around ammonium nitrate, as the Chair’s comments touched 

on, I want to reference a May report from the nonpartisan Government Accountability Office on Chemical Safety which helps make 

my broader point. 

It makes clear that unless OSHA takes additional action to ‘‘promote awareness of how to comply with its regulations, fertilizer facilities may not know whether their practices are in compliance 

with OSHA’s existing ammonia nitrate storage regulations.’’ 

Another issue I hope we focus on today is the stark contrast in 

the way the two agencies testifying before us are carrying out their 

respective rulemakings. The whole point of this joint hearing is to 

try to get everyone on the same page. 

I am afraid the two agencies before us today illustrate that we 

are not near there yet. In particular, I have concerns about EPA’s 

path forward does not appear to be willing or interested in any 

small business review, seeking advice to a Clean Air Act Advisory 

8 

Committee panel or convening a committee of experts under the 

Federal Advisory Committee Act, all of which is in Federal law. 

These differences are particularly troubling when you consider 

the agencies and their rules are directed by the Executive Order 

to be coordinated and harmonized and they are clearly not. 

Ensuring the citizens, workers and communities across Louisiana 

and the Nation are protected from industrial accidents of all kinds 

should always be a top priority. It certainly is a top priority of 

mine. It should always be based on considered information from 

what we have learned. 

I hope the hearing today helps us to take a positive step in that 

right direction. 

Again, I thank the two chairmen for holding this important hearing. 

Senator BOXER. Thank you very much, Senator Vitter. 

We turn to Senator Markey and then if no Republican is here, 

we will turn to Senator Franken. 

OPENING STATEMENT OF HON. EDWARD MARKEY, 

U.S. SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator MARKEY. Thank you, Madam Chairman. Thank you for 

calling today’s important hearing on improving chemical facility 

safety and security. 

The chemical sector is a testament to American ingenuity. It 

forms an essential building block of our economy, helps to keep our 

food and water safe and is integral to almost ever consumer product we use in our daily lives. 

The same chemicals that save and improve the quality of our 

lives can also take lives away. Whether we are talking about accidents or attacks, the map Chairman Boxer held up clearly shows 

this to be a danger deserving urgent and immediate attention. 

An analysis I am releasing today shows that according to EPA 

data, there are thousands of facilities in this Country whose contends endanger the lives of millions of Americans. More than a 

year and a half ago, in West, Texas, an accidental explosion at an 

ammonium nitrate fertilizer facility killed 15 people and leveled 

many buildings, including three schools. 

Ammonium nitrate was also used in the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing. 

Just this past Sunday, several thousand people were evacuated 

from a hotel in Illinois when what was described as an intention 

chlorine gas incident sent 19 people to the hospital. There have 

also been many reports of chlorine gas allegedly used by ISIL and 

others to kill and injure people in Syria and Iraq. 

Despite the urgent need to act, I do not see any urgency in the 

Administration’s plans to increase safety and security of chemical 

facilities. The Department of Homeland Security has warned of insider sabotage attempts at water facilities and said that there is 

a critical security gap at waste water and drinking water facilities 

that use dangerous chemicals. 

Nowhere in the response to the President’s Executive Order is 

there a plan for EPA to require security measures at the thousands 

of water facilities that use the same chlorine cylinders to purify 

drinking water as are being used as weapons by ISIL. 

9 

Five years ago, EPA supported legislation I authored that passed 

the House of Representatives that would have ensured that facilities containing toxic chemicals switch to safer processes or substances when it was technologically and economically feasible to do 

so. 

Nowhere in the response to the President’s Executive Order is 

there a requirement for facilities to switch to less dangerous chemicals, even though the cost of making such a switch at D.C.’s Blue 

Plains Water Plant added less than $1 to people’s monthly bills. 

Both the Chemical Safety Board and the GAO have said that 

safety regulations for ammonium nitrate must be upgraded, but nowhere in the response to the President’s Executive Order is there 

a directive to require more safety measures for this chemical that 

has already been the cause of so many deliberate and accidental 

deaths in this Country. 

We would do well to recognize that preventing every accident, attack or natural disaster is impossible, but what can be we do to 

prevent the worse consequences of these events, what can we do to 

recognize that catastrophic accidents and attacks using chemicals 

have already happened? 

What we can do is to heed the wake-up calls that point out the 

cost of our failure to reduce the frequency and consequences of 

chemical accidents. 

I am disappointed in the Administration’s response to the President’s Executive Order. I urge you to redouble your efforts to implement real change, not just more information gathering that 

properly responds to the threat of which so many have warned. 

Senator BOXER. Thank you, Senator. 

Senator BARRASSO. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Thank you very much, Madam Chairman. 

I look forward to the hearing today. Thank you for having it. 

As I have stated in the past, my home State of Wyoming is the 

largest consumer in the United States of ammonium nitrate, a 

chemical oxidizer implicated in the West, Texas accident. Mining 

companies in Wyoming use over 1.5 billion pounds of ammonium 

nitrate each year in places like the Powder River Basin when they 

use it to extract coal. 

At these mining sites, ammonium nitrate is mixed with fuel oil, 

pumped or poured into a blast hole which is then fitted with an initiation system. The subsequent explosion heaves away the rock to 

get to the coal and the minerals below. 

Through this process, Wyoming and other mining States in 

places like Nevada, Kentucky, West Virginia and Ohio, can provide 

essential building materials as well as affordable energy for families and small businesses all around the Country. 

The use of ammonium nitrate is so pervasive that there is no viable substitute for the commercial explosives industry. Without this 

material, the industry would have no alternative but to return to 

the use of nitroglycerin-based products which are far less safe. 

We know there are a series of Federal agencies that regulate facilities like those in West, Texas, including OSHA, Homeland SecuVerDate Aug 31 2005 15:24 Jul 07, 2016 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20361.TXT VERN
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rity, the Department of Transportation, the EPA, the Mine Safety 

and Health Administration, the U.S. Coast Guard and ATF. 

OSHA has the most comprehensive standards for ammonium nitrate in terms of safety and has demonstrated its commitment to 

enforcing those standards. For example, on October 9, 2013, OSHA 

issued 24 citations to the owner of the West fertilizer facility. 

As a result of the Interagency Working Group established by the 

President, OSHA is now considering if the standards need to be improved. Alternatively, the Working Group has asked whether 

OSHA should add ammonium nitrate to its Process Safety Management Program which could be a potential gateway to the EPA’s 

Risk Management Program, the RMP. 

As has been acknowledged by the Chemical Safety Board during 

hearings last year, there is no evidence that there has ever been 

an accidental detonation of ammonium nitrate when a facility has 

been compliant with the existing OSHA standards. 

As a result of this track record, I support OSHA’s proposed option to review and update its existing standards if necessary. 

OSHA has stated it will take appropriate time, perhaps a number 

of years, to finalize new requirements. 

I do have concerns that the EPA has made conflicting statements 

about whether it will allow OSHA’s process to play out before the 

agency attempts to inject itself into the regulatory framework by 

adding ammonium nitrate to the RMP. 

On October 29, I along with Senators Manchin, Enzi, Hatch and 

Heller, wrote a bipartisan letter to EPA Administrator McCarthy 

expressing our concerns about regulating ammonium nitrate under 

the RMP. 

Cynically, the EPA sent me a response to the letter last night. 

It came in after 6 o’clock last night for today’s 9:30 a.m. hearing 

after waiting almost a month and a half. The letter was signed by 

today’s EPA witness, Mr. Stanislaus. 

Madam Chairman, I ask that my letter and the EPA’s response 

be entered into the record. 

Senator BOXER. Without objection. 

[The referenced information follows:] 

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Senator BARRASSO. Thank you, Madam Chairman. 

My colleagues and I believe that imposing additional regulatory 

burdens on compliant facilities by including ammonium nitrate in 

the EPA’s RMP will do nothing to protect workers and the public 

from companies that, either through ignorance or for other reasons, 

avoid compliance with the Nation’s safety rules. 

The safety and security of our Nation’s chemical facilities, our 

workers and our communities is vital. If we make a mistake and 

over regulate a needed chemical needlessly for political reasons, we 

could have a negative impact on mining, farming and other commercial operations around the Country. The end result will be lost 

jobs for already struggling communities. 

With that, thank you very much, Madam Chairman. I look forward to the testimony. 

Senator BOXER. Senator, thank you. 

I just want to make the point that the RMP is the Risk Management Plan. 

Senator BARRASSO. Yes. 

Senator BOXER. The Administration is saying that if you have 

ammonium nitrite, you ought to have a plan to avoid the risk of 

something happening. You object to putting it in that risk management plan? 

Senator BARRASSO. I support what OSHA is doing at this point. 

Senator BOXER. Thank you very much. That is an important 

point. 

Senator Franken, followed by Senator Crapo. 

Senator FRANKEN. I don’t have an opening statement other than 

to say I am happy we are having this hearing today. I look forward 

to hearing the testimony and asking some questions. 

Senator BOXER. Senator, thank you so much. 

Senator CRAPO. Senator CRAPO. Thank you, Madam Chairman. 

I don’t have an opening statement either. I look forward to the 

testimony. 

Senator BOXER. Senator Murphy, do you have an opening statement? 

Senator MURPHY. No. 

Senator BOXER. Then we will proceed to our witnesses. We will 

hear first from OSHA, Hon. David Michaels. Welcome, sir. 

STATEMENT OF DAVID MICHAELS PH.D., MPH, ASSISTANT 

SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND 

HEALTH, U.S. DEPARTMENT OF LABOR 

Mr. MICHAELS. Good morning, Chairman Boxer and members of 

this committee. Thank you for holding this important hearing. As 

Assistant Secretary of Labor for OSHA, I am honored to testify 

today about our work improve safety and security of chemical facilities across the Country. 

Last week, at a DuPont chemical plant in Texas, four workers 

died, including two brothers, as a result of release of a highly toxic 

methyl mercaptan. This comes in the wake of the tragic explosion 

at the West Fertilizer Company that killed 15 people last year. 

Unfortunately, disasters like these are far too common. As the 

Chairman noted, in recent years, there have been numerous signifiVerDate Aug 31 2005 15:24 Jul 07, 2016 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20361.TXT VERN
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cant process safety-related incidents resulting in more than 75 fatalities and hundreds of injuries. 

In an effort to prevent these types of tragedies, President Obama 

issued Executive Order 13650, Improving Chemical Facility Safety 

and Security and to reduce the risks associated with hazardous 

chemicals to workers. 

To accomplish these goals, EPA, DHS and DOL, along with other 

agencies, established an Interagency Working Group. Together, we 

undertook a comprehensive review of chemical safety and security 

programs, engaged in extensive stakeholder outreach to solicit feedback and identified best practices. 

Using the information gathered, the Working Group took several 

actions including the creation of a Consolidated Federal Action 

Plan. The details of this plan, along with the progress made by the 

Working Group, are described in the report to the President which 

is summarized in my written statement. 

In my short time before you today, I would like to focus on some 

of OSHA’s efforts. 

As you know, OSHA has standards requiring employers to protect workers at chemical facilities. For example, our Process Safety 

Management Standard, PSM, sets requirements for the management of highly hazardous substances. 

Our Explosive and Blasting Agent Standard governs the manufacture, storage, sale, transport and use of explosives, blasting 

agents and pyrotechnics. 

Our Flammable and Combustible Liquids standard applies to the 

handling, storage and use of flammable and combustible liquids. In 

addition, we have various emphasis programs to address specific 

hazards. We launched our oil refinery PSM program in 2007 following the 2005 BP explosion that killed 15 workers in Texas City. 

We used our experience under this program to begin a similar 

emphasis program for PSM covered chemical facilities in 2011. 

OSHA is exploring other actions to improve the safety of chemical facilities including changes to our emergency response standards, modernizing and updating the PSM standard and policies, 

regulating changes to improve ammonium nitrate safety and developing targeted outreach and guidance products. I will highlight a 

few of these efforts and refer you to my written statement for further details. 

OSHA is committed to updating and modernizing our PSM 

standard. This was issued more than two decades ago when response to disastrous chemical releases in the United States and the 

catastrophe in Bhopal, India, the 30th anniversary of which was 

observed just last week. 

Modernizing the PSM standard will allow us to implement advances in industry, recognize best practices and protect workers 

from hazards that currently are not covered. To begin this modernization process, OSHA issued a Request for Information. Based 

on the information collected in this process, we are considering addressing several issues which are detailed in my written statement. 

We have also undertaken initiatives to improve ammonium nitrate safety as raised by Senator Vitter. We joined with the Agricultural Retailers Association and the Fertilizer Institute to disVerDate Aug 31 2005 15:24 Jul 07, 2016 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20361.TXT VERN
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tribute a letter providing the industry with information on our Explosive and Blasting Agent Standard. 

More recently, we issued guidance to help our compliance officers 

apply all requirements to facilities that store ammonium nitrate. 

We are also in the final stages of forming an alliance with the fertilizer industry, emergency response organizations and others to 

promote best practices for ammonium nitrate safety. 

Finally, as discussed in my testimony, OSHA has identified areas 

where legislation could significantly improve worker protections. 

These include improving coverage for all emergency response workers, many of whom have no OSHA coverage, and increasing OSHA 

Act civil and criminal penalties to serve as more credible deterrents 

as well as to keep up with inflation. 

Frankly, our civil penalties are very low and we have virtually 

no criminal penalties. 

I look forward to working with members of both committees, our 

Federal and State partners and stakeholders to address these and 

other important issues. 

Thank you so much for your commitment to improving chemical 

facility safety and security and for your efforts on behalf of America’s workers. I would be pleased to answer any questions you may 

have. 

[The prepared statement of Mr. Michaels follows:] 

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Senator BOXER. Thank you, Mr. Michaels. 

Mr. STANISLAUS. 

STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. STANISLAUS. Good morning, Chairman Boxer, Chairman 

Casey and members of the committee. 

I am Mathy Stanislaus, Assistant Administrator of the U.S. Environmental Protection Agency’s Office of Solid Waste and Emergency Response. 

I thank you for the opportunity to testify today on our urgent efforts to implement the commitments made in the May 2014 report 

to the President, Actions to Improve Chemical Safety and Security, 

A Shared Commitment. 

This Administration recognizes the terrible loss suffered by families and communities as a result of chemical accidents and releases 

and we are committed to working collaboratively with first responders, facility owners, operators, State, local and tribal partners 

and organizations and associations with an interest in improving 

chemical facility safety and security. 

The Administration also recognizes the importance of immediate 

action and the important role safe chemical manufacturing plays in 

the United States. 

In the aftermath of the tragic West, Texas facility explosion, the 

President issued an Executive. The Executive Order, as the Chairman recognized, established a Working Group chaired by EPA, 

OSHA and the Department of Homeland Security to improve chemical safety and security in coordination with all stakeholders. We 

continue a broad outreach effort. Since the Executive Order and 

the report to the President were issued, we have met with hundreds of stakeholders representing local communities, local responders, emergency planners, State and tribal officials and industry sector officials. 

We know that handling the storage of chemicals presents safety 

and security risks. Events from the past few years have resulted 

in far too many injuries and deaths. Prevention and preparedness 

is an ongoing and evolving process. No one action can effectively 

address chemical safety. We have to address chemical safety in a 

comprehensive, multifold series of actions. 

I have walked both sides of chemical facilities. I have talked to 

communities adjacent to chemical facilities. I am convinced a significant, primary focus needs to be getting critical facility information into the hands of the people who need it most, local emergency 

planners and first responders to help them use that information in 

a way that effectively addresses risk by the facility, undertake prevention activities, undertake response planning activities to effectively respond to chemical facilities. 

We need to ensure the local citizens, who talked to me repeatedly 

around the Country, who need to be engaged in the local process 

to ensure that they are effectively notified to participate in the 

planning process and that they have full understanding of evacuation capabilities and where sheltering in place is necessary that 

they are fully informed and participate in the process. 

48 

Local communities are at the front line of chemical plant safety 

and they need our help. Again, we are actively engaged with all the 

local responders and local communities with a focus on getting 

them information and enhancing the tools and information so they 

can lead the development of emergency response plans which is a 

central piece of the Emergency Planning and Community Right to 

Know Act. 

In addition, we stood up immediately after the Executive Order 

a pilot program bringing together local officials, emergency planners and first responders from State and local governments to identify what specific actions can be done on the ground to improve 

safety. 

We have identified a number of actions where we have moved 

forward and operationalized already. It includes sharing facility information to inform local emergency planning and identifying important chemical facility points of contact to support effective local 

emergency response planning. 

We have worked with the Department of Homeland Security to 

ensure that we identify non-compliers. We have identified non-compliers and are aggressively moving forward to ensure they provide 

us with process hazard analysis and identify all the prevention and 

response measures necessary to make sure those facilities are protected. 

We have issued a Request for Information which is a commitment we made to the President to look at various components of 

enhancing and building upon the successes of RMP regulation. 

RMP regulation has not been reviewed for multiple decades. Obviously we are aligning especially with OSHA. We have joint responsibility to protect workers and communities. 

We know from our experience with the Risk Management and 

Planning Program that safety of chemical plants requires a comprehensive approach. A number of the things we identified in the 

Request for Information include things like prevention activities 

which look at, for example, process upsets and near misses, widely 

recognized as the single most important thing to prevent catastrophic events. 

We are looking at safer opportunities in chemical plants and mechanical integrity of safety-related equipment to prevent offsite impacts. 

Madam Chairman, I look forward to your questions. 

[The prepared statement of Mr. Stanislaus follows:] 

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Senator BOXER. I am sorry to rush you. I need to go and Senator 

Murphy also. That is why Senator Barrasso had to leave, Senator 

Markey and myself. You may be relieved with that. 

Let me just say for my questions and then I am going to hand 

the gavel to Senator Casey, could you hold up that chart again? 

We know that out of all the Executive Orders, only four have 

been completed and those have nothing to do with any changes at 

the plants. As a matter of fact, a plant like West is not required 

to do any new or different and the only things that got done were 

things the agency is doing. 

I value your work and I honor your work but this is unacceptable. If you look at the number of days since the West, Texas explosion, every other day, essentially, there was an accident. This is absolutely outrageous. This happened in 2013 and all we have going 

here are a few things you are doing interagency. 

I am asking you, Assistant Administrator Stanislaus, and Assistant Secretary Michaels, on what date do you commit to completing 

all of the Executive Order directives within your agencies’ jurisdiction? Give me a date and give me a timeframe of when. I would 

ask Mr. Michaels first? 

Mr. MICHAELS. Chairman Boxer, our regulatory system, speaking 

from OSHA’s point of view, is broken. I cannot tell you when we 

will be able to finish the update of the Process Safety and Management standard. 

Senator BOXER. Wait a minute. The President issued an Executive Order with deadlines. If you are ignoring that, then you are 

not following the law. If you are broken, that is a whole other problem. 

I am asking you what is your goal for finishing this list that you 

have to finish? Will it be before President Obama leaves office, will 

it be done by then? 

Mr. MICHAELS. Certainly there are many components. We are on 

target to meet our deadlines within the system. 

Senator BOXER. I don’t know what the heck your deadlines are. 

I need it in writing. What are your deadlines? 

What about you, Mr. Stanislaus? Can you commit to finish what 

the President ordered you to do? 

Mr. STANISLAUS. Absolutely. 

Senator BOXER. When? 

Mr. STANISLAUS. In the report to the President, we identified a 

number of very specific milestones. We have specific milestones and 

we are on track on every single item on that list with respect to 

moving forward on guidance, working with local responders and 

providing tools to local responders. 

Senator BOXER. I don’t want to hear all this. I know what your 

goals are. When are you going to do it? You had a year’s worth of 

meetings in order to figure out what questions you are going to ask 

the public. You haven’t even proposed regulations. When are you 

going to propose the regulations? 

Mr. STANISLAUS. We are going to propose regulations next year. 

Our plan is to finalize it in 2016. 

Senator BOXER. Early next year? 

Mr. STANISLAUS. I will get back with the specific date. 

Senator BOXER. Get that to me. 

62 

Mr. STANISLAUS. We committed in the report to the President to 

finalize regulations by the end of this Administration. 

Senator BOXER. OK. Will EPA commit to address ammonium nitrate fertilizer hazards under its Risk Management Plan and when 

are you planning to do that? 

Mr. STANISLAUS. Ammonium nitrate is one of the items that we 

identified in the Request for Information. We are evaluating those 

comments in terms of whether the best approach to address safety 

is the Risk Management Planning Program or looking at OSHA’s 

efforts. 

Senator BOXER. Have you even decided whether ammonium nitrate will be included? 

Mr. STANISLAUS. We have not. 

Senator BOXER. Why wouldn’t you know that is a no-brainer? 

Mr. STANISLAUS. Again, we have received lots of comments in 

terms of the best approach. I think we have a shared commitment 

to increase the safety of ammonium nitrate. We are looking at the 

best regulatory approach in addition to complement all the other 

efforts. 

Senator BOXER. Let me just say, you are so concerned, I am not 

talking about you but the agency. It is only OSHA that at least has 

updated and put on their website how you are supposed to handle 

it. You have done virtually nothing on this point. 

Ammonium nitrate is so dangerous. If you are dealing with it, as 

West, Texas is, they haven’t been asked to do one thing different. 

Speaking for myself, I certainly don’t speak for Senator Vitter or 

Senator Barrasso and they don’t speak for me, as one Senator, my 

colleague said how important the chemical industry is in his State. 

Yes, the chemical industry is extremely important. Let me tell you 

so are the people. 

We have to protect the people if there are problems and we know 

there are problems because they keep happening. People are dying 

and going to the hospital. Millions of kids live near these facilities. 

Ten million are living in two hazardous zones. One in three is living around one hazardous zone. This is serious business. 

I am going to hold you to those letters I asked you for. I will 

share them with colleagues. When you opened, you said, we have 

such a sense of urgency. I don’t see it. There is a lot of talk and 

there is not any action, except for working between the agencies 

which is great but on the ground, if I had a kid who lived in that 

hazard zone, I would be pulling my hair out right now if I was 

watching this. Take it from me, that is how I feel. 

I turn to my colleague, Senator Vitter, and I will turn the gavel 

over to Senator Casey. 

Senator VITTER. I am going to pass for now and allow other 

members to ask questions. 

Senator CASEY. 

[Presiding] We want to thank Senator Boxer and others who are 

juggling very difficult schedules on these last days we will be in 

session. 

I am grateful for her leadership on this issue and grateful for her 

sense of urgency because I think that is shared by all of us. I know 

everyone in the room has a concern about this but it does get frustrating when people have a sense that the Federal Government has 

63 

a goal but is not moving at the pace at which taxpayers and certainly families that will be affected by these issues expect us to. 

I am going to be here for a while. I arrived late with all of the 

juggling of schedules. We are going to try to make sure that every 

member who is here and some may be returning has a chance to 

either do an opening and questions or just questions. 

I think Senator Franken was one of the early arrivals. He has 

some questions and I will turn to him and we will go from there. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

In 2011, OSHA implemented the National Emphasis Program 

that prioritizes inspection of facilities where workers handle highly 

hazardous material and yet we have had tragedies like the recent 

loss of life at the DuPont chemical plant in La Porte, Texas. 

These incidents aren’t limited to Texas; they are a national problem. It is important that we get this right and protect workers. 

I guess my question to you, Mr. Michaels, is, in your opinion, 

what single action by OSHA would help most in preventing the 

next chemical incident that kills someone? 

Mr. MICHAELS. There obviously are many things we would like 

to see happen but I think one of the primary issues that holds us 

back from protecting workers and encouraging employers to do the 

right thing is our lack of being a credible deterrent because of our 

weak penalty structure. 

The maximum penalty for an OSHA violation, a serious violation, is $7,000. A willful or repeated violation is $70,000. To a 

small company, that is a significant deterrent but to large employers, especially petrochemical plants, that is not even the cost of 

doing business. 

Our criminal penalties are virtually meaningless. Under the 

OSHA Act, if a worker is killed n association with a willful violation, it is a misdemeanor with a maximum 6 months in jail against 

the corporation, rarely against a person. If a worker isn’t killed, 

there is no criminal penalty. 

Let me give you an example of the problem we face. A number 

of years ago, there was an explosion at a Delaware oil refinery 

owned by Motiva which is half owned by Shell, half owned by 

Saudi Aramco, a big company. 

Jeff Davis was a worker there. There was explosion with sulfuric 

acid and his body was virtually decomposed. We went in there and 

issued a $175,000 fine, a very small fine. EPA followed us because 

there were fish and crabs that were killed and they issued a $10 

million fine. 

Can you imagine telling Jeff Davis’ wife, Mary, and their five 

kids that the fine for the hazards associated with his death was 

one-fiftieth of the fine associated with killing fish and crabs? 

We would be very grateful if Congress would allow us to issue 

penalties at a much higher level because we think that would deter 

employers from allowing these hazards to exist because right now 

our penalty structure isn’t effective. 

Senator FRANKEN. That is very interesting. There is no real deterrent because at the most, it is a slap on the wrist and the highest fines are negligible. May be we should adjust this to the size 

64 

of the operation or something like that or to have some flexibility 

there. 

You talked about Delaware. We have heard about recent incidents in Texas, the BP refinery in Texas City, the West fertilizer 

company in West, Texas which killed 15 people, I believe, and recently the DuPont chemical plant which killed four and two brothers. 

I would like to know what allowed these unsafe working conditions to persist. Is the fact we are seeing multiple incidents in 

Texas an anomaly or are there other factors specific to Texas such 

as a more relaxed State regulatory environment that has led to 

these tragedies? 

Mr. STANISLAUS. I can’t say that I can answer that specific question. We have not done a State by State analysis. 

One of the critical items that was identified as we went to listening sessions around the Country was information and tools for local 

responders so local responders could identify the risk, whether it 

be a school—are they at risk of an explosion and the various actions necessary to protect them. 

It is a national issue. That is one the things we have aggressively 

done, providing, for example, some modeling which allows local response officials to identify where a potential plume, where an accident occurs, what is the spread of that and various actions to prevent risk to those communities. 

Senator FRANKEN. I am out of time but if you will indulge me, 

Mr. Chairman, I just want to follow-up on this issue of OSHA regulations and other regulations as administered by States. 

Are there differences between State OSHA regulations such that 

we see so many of these happening in Texas? Should we be focused 

on differences in the way States do their OSHA work? 

Mr. MICHAELS. The answer is, yes, we should be very much focused on those differences. Texas actually is a Federal State so for 

worker protection, OSHA is responsible though it is noted that 

Texas is one of the very few States that does not have a mandatory 

workers compensation program. 

One of the options employers have is to actually not get workers 

compensation insurance and I think in some cases, as a result of 

that, they have riskier workplaces. Louisiana and Texas, these are 

the States at the heart of the petrochemical industry. I think that 

is the primary issue we are talking about. 

There are 21 States that have their own State plans, including 

Minnesota. OSHA is responsible to make sure that those programs 

are at least as effective as Federal OSHA. We have a lot of mechanisms to do that. We have some States which I think do a far better job than others and that is of great concern. 

The specifics we are talking about here, I don’t think that is an 

issue because in Texas that is simply a Federal State. State law 

has very little obligation around worker safety. That is not the case 

with EPA, however. 

Senator FRANKEN. Thank you. 

Thank you, Mr. Chairman. 

Senator CASEY. Thank you, Senator Franken. 

I want to thank our witnesses. I will have a few questions in a 

moment but I do want to put my statement in the record. I will 

65 

do this as quickly as I can so we can get back to questions and then 

we will have other members who were here that may be returning 

or other members who may be here over the course of the next 45 

minutes or so depending on voting. 

First, I want to recall what has been recalled a couple of times 

this morning, what happened April 17, 2013. Thirty tons of ammonium nitrate fertilizer detonated during a fire at a fertilizer plant 

in the town of West, Texas, killing at least 15 people, causing injury to over 200 individuals and damaging nearby schools, homes 

and a nursing home. 

More recently, this past November, four workers died and one 

was injured at a chemical plant in La Porte, Texas after the release 

of a hazardous chemical. 

These terrible incidents have raised concerns about the risk 

posed by similar facilities across the Country. Almost every State 

has some community at risk and in some cases, plural communities 

at risk of experiencing a catastrophic event stemming from poorly 

regulated chemical or ammonium nitrate storage facilities. 

This is an issue that affects many workers and many communities all across the Country. The Occupational Safety and Health 

Administration, the EPA and the Department of Homeland Security play a central role in protecting workers and communities 

across the Country from chemical accidents. 

It is imperative that these agencies work together to prevent 

chemical accidents and keep our workers and communities safe by 

sharing relevant information and ensuring facilities are held accountable for complying with applicable regulations. 

I want to recognize and thank the Administration for recognizing 

the severity of these recent disasters and taking action by issuing 

Executive Order 13650 on August 1, 2013, directing the aforementioned agencies, OSHA, EPA and Homeland Security, to lead an effort to improve operational coordination among Federal agencies as 

well as with State and local partners to modernize policies, regulations and standards. 

Additionally, several Members of Congress, including Chairman 

Boxer and I and others have asked the Government Accountability 

Office to look closely for the potential regulatory gaps which are 

often the case, the gaps that leave workers and communities inadequately protected against these types of catastrophic chemical incidents. 

I applaud the members of the Administration involved in the Executive Order working group and the GAO for the work put into 

their final reports. These reports are thorough and include great 

recommendations. Now is the time to roll up our sleeves and turn 

these words into action and have the sense of urgency that was articulated by Senator Boxer this morning. 

We know that sometimes reports like this are written, then forgotten and never implemented. We have to make sure that does 

not happen in this case. I can assure you that Members of Congress in both parties will not forget about this issue. It is all too 

important to our workers, communities and, of course, to public 

safety. We cannot allow Federal agencies to forget as well. 

I think the hearing should focus on a number of basic issues and 

priorities. First is to ensure that data collection and information 

66 

sharing issues between and among agencies have been identified 

and that plans are in place and implemented to correct these problems. 

Two, we should discuss time lines, you have heard some of that 

already, for implementation of regulatory changes recommended by 

both GAO, as well as the Executive Order work group. 

Third would be to determine if any additional executive branch 

or legislative branch actions are needed to ensure the safety and 

security of American workers and communities from the dangers 

associated with hazardous chemicals such as ammonium nitrate. 

We all look forward to further exploring what questions have already been raised. 

Senator CASEY. At this time, I also want to make sure I ask 

unanimous consent to enter the testimony submitted by the Chemical Safety Board for the record. Without objection, that will be 

made a part of the record. 

[The referenced information follows:] 

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Senator CASEY. Mr. Michaels, I want to start with you. By way 

of full disclosure, most of my questions will be directed to you. Mr. 

Stanislaus, I won’t let you off the hook and let you run because I 

do want to have a couple of follow-ups with you as well. 

Let me start with you, Mr. Michaels, and go through a couple of 

basic issues. The concerns that I have raised and those raised in 

this hearing are not as significant or as heightened when you have 

a company doing the right thing in terms of safety and health and 

protecting workers and the work site. 

If you don’t have a company or a number of workplaces that insist on these tough rules, we have to rely upon what OSHA does. 

In your testimony, you said, ‘‘OSHA doesn’t have the resources or 

capacity to inspect all facilities.’’ 

I noted in your testimony at the bottom of page six, you said, 

‘‘OSHA has slightly more than 2,000 inspectors to cover workplace 

safety and health in over 7 million workplaces across the Country,’’ 

a daunting task by any measure. 

I wanted to ask you a question about the tools available to you, 

the civil and criminal penalties that are available and what we can 

do to strengthen them. First and foremost, with regard to the civil 

and criminal penalties now in place, what action should we take 

to make them a more effective deterrent? 

Mr. MICHAELS. You are quite correct. We face a daunting challenge and we have many tools to encourage employers to do the 

right thing, but in every case, when we look at the United States 

we see there are literally millions of employers and we have a relatively small staff. 

An effective deterrent involves having strong penalties. As I said 

in the question from Senator Franken, for many employers, our 

penalties are quite low and really aren’t seen as being effective. 

I was in a meeting recently with high level executives of the 

chemical industry and one of them said, I look at OSHA as a very 

expensive consultant. They will do an industrial hygiene inspection 

and we may have a penalty of $10,000, $20,000 or $30,000. We will 

learn quite a bit and that will be less expensive to us than bringing 

in an outside industrial hygiene firm to do the same work. 

Congress has considered, in a number of pieces of legislation, increasing OSHA’s penalties. I think that would have a very important effect on improving workplaces if employers saw the possibility of large penalties if they didn’t abate hazards before we got 

there. That is our objective. 

We want employers to make the changes before we inspect, or 

preferably not even have to inspect. The fear of a high penalty or 

the fear, in the most extreme cases, of criminal penalties would 

change the behavior of those employers who aren’t doing the right 

thing. 

Obviously, most employers would like to do the right thing, but 

we know that stronger penalties will move them in the right direction. 

Senator CASEY. Can you give us some examples? Let us take a 

hypothetical. Say you have a plant that has an explosion of some 

dimension. Let us assume it is not as devastating as what happened in West, Texas. 

98 

Say there is an explosion and there are a number of injuries. Let 

us say it is limited to injuries that prevent 25 employees from returning to work right away but they will recover and can go back 

to work. 

In that kind of more scaled down, limited instance where you 

may not have a death or a series of deaths, you may not have 

broad based and severe injuries. Walk us through what would be 

the process and the potential penalties just in that limited case. 

Mr. MICHAELS. Penalties are based on hazards, not on the outcome. Obviously, if there are fatalities or injuries, we think the 

likelihood of that hazard being present before that explosion was 

very great. We do the investigation and determine whether or not 

the hazard was there and the gravity of the hazard. We can determine the gravity by the impact of the explosion and it affects us 

but it is still limited. For each violation, unless we show that it is 

willful, the maximum penalty is $7,000. 

We have had fatalities where we had one violation and then if 

it is a small employer, we reduce that by as much as 60 percent. 

Then if they have no history of OSHA inspections, they have no 

bad history, we will reduce it further. This is sadly the case. After 

events where a worker was killed, we will have a $3,000 penalty. 

In this explosion, if there was only one violation, we might issue 

a $7,000 penalty. That would be our maximum penalty. The West 

fertilizer incident, I don’t remember the exact amount, but it was 

a relatively small penalty, well under $100,000. I think it was far, 

far less than that. 

It could be one hazard, one violation that has resulted in the 

plant being destroyed, millions of dollars in damages and dozens of 

people injured. It is very limited, needless to say, and it makes us 

not a credible deterrent. 

Senator CASEY. Senator Boozman is here and I want to make 

sure he gets some time. I want to allow him his time and extra 

time if he needs it. 

Let me get back to this because I don’t consider what you just 

outlined in any way a deterrent. No, there is not an ounce of deterrence in what you just outlined, in my judgment. 

Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Mr. Stanislaus, does EPA intend to convene a Small Business 

Regulatory Enforcement Fairness Act panel to address small business’ interest regarding changes to the RMP rule? 

I know we all want things done in a timely manner. The other 

side of that is we want it done right. These are difficult things, 

they are complex and the key is getting something done, yet we 

want the appropriate thing done. Are you going to take that step 

to ensure openness and transparency? 

Mr. STANISLAUS. At this point, we are still evaluating the 

100,000 comments and trying to determine which of those measures we would move forward and propose regulation and in doing 

so, what impacts small businesses and figure out how we can best 

engage small business. 

We have not made a determination at this point. 

99 

Senator BOOZMAN. I would encourage you to do that. We want 

a good product, we want input from the people who are out fighting 

this battle on every level so that we can have a good product. 

What progress is being made by your agencies, this is directed 

to both of you, to help identify outliers, those companies that do not 

participate in the relevant programs of industry associations or do 

not apply generally recognized best practices? How many outliers 

have you identified since the West, Texas incident and what steps 

have your agencies taken to help them with compliance? 

Mr. Michaels, did you say there were 7 million businesses? 

Mr. MICHAELS. Between 7 to 8 million workplace establishments. 

Senator BOOZMAN. Of those 7 to 8 million, many are very low 

risk. How many workplaces are there out there you consider high 

risk that need to be more closely watched than others? 

Mr. MICHAELS. I would have to get back to you with an exact 

number, but we are talking about millions. 

Senator BOOZMAN. That is an important distinction. Out of that 

7 to 8 million, some of them might be doing routine things they 

should not be doing. There are certainly some industries more important with regard to safety than others. 

Mr. MICHAELS. Absolutely, and we prioritize our inspections 

based on hazards or injury rates. On the other hand, we regularly 

see, fortunately infrequently, fatalities and injuries at low hazard 

workplaces. We have programs that aim at different types of workplaces but we cannot ignore them. 

Senator BOOZMAN. I understand. 

Mr. MICHAELS. We prioritize, obviously. 

Senator BOOZMAN. I understand. 

The other thing that struck me was you mentioned that a business essentially said, we are going to have a violation, you guys are 

going to come in and slap them on the wrist, fine them or whatever. 

Are we in a situation where these things are so complex that a 

company cannot go to OSHA and understand the rules that you 

don’t have to go through some convoluted situation like that or you 

have to hire a team that comes in and costs a tremendous amount 

of money to understand the regulations? 

Can we not get to a situation where companies can actually understand these rules without entering something like that? 

Mr. MICHAELS. Senator Boozman, I am so glad you asked me 

that question. 

We have a program in every State in the Country which provides 

free, onsite inspections without any sort of penalty or citation to 

small and medium-sized employers. We pay 90 percent of it, the 

State pays 10 percent. It is located in the State to make it clear 

it is independent from Federal OSHA. 

In some cases, it is the State labor department and in some cases 

it is a university. We strongly encourage employers to call them. 

They get the OSHA inspection and all the information without the 

risk of a citation to absolutely address that. We far prefer that is 

the contact with OSHA rather than having one of our inspectors 

come in and issue citations. 

Senator BOOZMAN. The larger employers? 

100 

Mr. MICHAELS. We have compliance assistance specialists in virtually every one of our offices. We have a tremendous amount of 

information on our website. We get millions of hits every year. 

We don’t want any hazard to exist because an employer doesn’t 

understand the rules or what the hazard is. We really go the extra 

mile to get out that information. We find many employers appreciate that and try to do the right thing. 

Some need to be encouraged more strongly. Frankly, the fear of 

inspection gets employers into that system. We like that to happen. 

We like them to get into that system and get that help before we 

inspect. 

Senator BOOZMAN. In regard to the outliers, people who aren’t 

following best management practices, can you comment on that? 

Mr. STANISLAUS. Immediately after the incident in West, Texas, 

EPA and DHS looked at whether there were any outliers among 

our different data bases and we did a cross review. We identified 

13 facilities that should have filed. We have notified them and our 

regional office is working with them to make sure they do the product hazard analysis and all the steps to prevent risk. 

The lesson learned from that is we need to automate the system. 

It is called the Federal Registry Service and it contains 90 different 

Federal and State systems. We have included all the DHS and 

CFAS data as we are able to automatically look at non-complying 

facilities. This is a first step toward making a more comprehensive, 

more automated effort on non-compliers. 

We also have worked with State and local response officials and 

given them information to identify non-compliers. One thing they 

identified to us is when an enforcement action happens among all 

the chemical facilities, that is the indication to them that they 

should pay attention. We are providing that information to them. 

I also want to compliment some of the efforts of some of the 

trade associations. The American Chemistry Council has recently 

begun doing training sessions around the Country, inviting both 

members and non-members. Part of it is education, so they are 

doing it directly. 

We are also providing information to ourselves, through our data 

bases, of the various regulatory responsibilities so entities can identify their potential application of existing Federal regulations. 

Senator BOOZMAN. Very good. 

Mr. MICHAELS. You have raised a very tough question, how do 

we identify those companies that aren’t following the right procedures. 

We start new procedures in that area around safety where we 

are identifying those companies where workers are at high risk for 

severe injury, for example, by having new reporting requirements. 

When a worker is seriously injured, starting January 1, employers will have to call us and we will go out there, in some cases, 

or get on the phone with them. We are finding, even before it begins, when we look at some of our fatalities, some of the most serious injuries we hear about, these are from companies that were 

never on our radar. They didn’t come up in our Dun and Bradstreet 

searches of these industries. 

When we talk about disasters, the likelihood of an explosion or 

a chemical hazard, that is much tougher because you don’t have 

101 

the precursor that we know about. We are working with these various industries to identify the characteristics we can pick out. If we 

can do that, we will start doing some more inspections but it would 

be a great challenge to us. 

Places like West Fertilizer were never on our radar screen. There 

are hundreds of places like that. That was probably never compared to any of the other ones. It is tough. 

Senator BOOZMAN. Thank you all. 

Again, I am encouraged that industry is working hard, along 

with you, to try and fix these problems. I think that is another reason that hopefully we can involve them in the rulemaking process, 

that they are out and about and trying to educate. I think they can 

provide tremendous positive feedback. 

Thank you very much, Mr. Chairman. 

Senator CASEY. Thank you very much, Senator. 

I know we have a vote that has started so we will be wrapping 

up soon. 

I have just a few more questions for both of our witnesses. 

Mr. Michaels, I wanted to ask a question about the Process Safety Management Standard which, pursuant to your testimony, is 

about 20 years old. In the context of that, can you walk us through 

what gaps exist in our current Process Safety Management Standard and how those gaps, if there are, may be putting both workers 

and communities at risk? 

Mr. MICHAELS. The PSM standard dates back 20 years or a little 

more. We started it quite a bit of time before that. 

Senator CASEY. Can you define it so that people know? 

Mr. MICHAELS. Process safety management is essentially dealing 

with the processing of chemicals. The concern was the release of 

chemicals either in just the form where they can be inhaled or released in the situation where there can be an explosion or a fire. 

Senator CASEY. These standards are a way to manage that? 

Mr. MICHAELS. Exactly. These are system standards. We don’t 

have very specific rules saying this is exactly what you just do for 

each chemical. 

We tell employers they have to evaluate the situation, essentially 

do a process safety analysis to look at what are the hazards associated with each chemical, how they are addressing it and come up 

with a plan. 

They have to involve workers in that plan, evaluate that plan on 

a regular basis and make sure it works. 

It is a very good standard but it is outdated. Areas like reactive 

chemicals, for example, we don’t have a rule that says employers 

have to look at the potential of different chemicals in their system 

of reacting with each other and then causing a new set of hazards. 

Many employers address that. Obviously the ones that know 

what they are doing are very concerned about that and do the right 

thing, but because we don’t require it, not every employer takes 

that approach. 

That is one we are looking at. We have asked questions in this 

Request for Information about that. We hope to address that based 

on the information we get. 

102 

Senator CASEY. If you can, describe or outline some of the potential risks or potential costs of not expediting an update to those 

standards. 

Mr. MICHAELS. We would like to move as quickly as we can. This 

was something I began to say to Chairman Boxer. The regulatory 

process is very slow. We have a process which involves multiple 

steps and a huge amount of stakeholder input. 

We started the process with this Request for Information. We 

will be doing our small business regulatory fairness hearings later 

on in 2015 where we will involve representatives of small business 

to talk about some of the changes we are considering. 

Based on that information, we will then do extensive economic 

and technological analyses to make a proposal. That then begins 

this process where we will have public hearings and input. It will 

take a while. 

Relatively simple standards take 5 years or more and complex 

ones can take more than that. It is a shame. It means there is no 

way we will update this in the next couple of years. 

Fortunately, even the process will make things a little bit better 

because employers will get involved and see what they need to do, 

but our ability to enforce stronger standards will take, unfortunately, years and maybe even 5 years or more. 

Senator CASEY. I know we have to wrap up. I will just ask you 

one more question and then come back to you both for a final one. 

In your testimony, looking at page 10 going over to page 11, you 

have two itemized potential legislative initiatives to improve worker protection. No. 1 is coverage for all workers and No. 2 is increasing the penalties. Can you walk through those two? 

One of the things we try to do here is elicit testimony that will 

lead us to legislative solutions. We don’t believe that legislating 

cures all problems but once in a while we can work together on a 

problem and get it right. 

Mr. MICHAELS. The major concern that has come up in these 

events and I tried to address in my testimony is OSHA coverage 

of emergency responders. Most of the people killed at West, Texas 

were actually emergency responders and they were volunteers. 

I believe at the DuPont facility, we are looking at this now, two 

of the workers who were killed rushed to the scene to save the 

other two people who were there. 

Our coverage of emergency responders is really a patchwork. 

Under Federal law, if you are a State or municipal employee and 

an emergency responder, a firefighter, you have no coverage in the 

Federal States. In Pennsylvania or Arkansas, those workers are 

not covered by Federal OSHA so there is no requirement that their 

employer make the proper planning to make sure they are safe. 

In State plans, the State and municipal workers are covered. In 

three Federal States where there are State programs, Connecticut, 

New York and New Jersey, there are programs like that as well, 

and now Illinois as well. 

Volunteers are covered differently. Many of these are volunteers. 

Some States cover volunteers based on their definition, others 

don’t. There is some coverage from EPA but to come up with a consistent approach to provide OSHA coverage, requirements to plan, 

103 

to train, and to make sure these workers have the equipment they 

need to be safe, would be a tremendous advance. 

These workers are heroes and they deserve that. This would be 

an issue for Congress. We would love to work with Congress on essentially making this patchwork of coverage one comprehensive, 

modern system. It will make sure emergency responders are safe. 

Senator CASEY. At the end of your testimony, you said, ‘‘Ensure 

full protection of all emergency responders whether private sector, 

public sector or volunteers.’’ 

Mr. MICHAELS. That is right. 

Senator CASEY. I know you have the section on the penalties but 

because we are short on time, we will leave that for the record and 

have others submitted for the record. 

To wrap up, I have a question for both of you. As we know this 

is a hearing of the Environment and Public Works Committee and 

a subcommittee that I chair on the Health, Education, Labor and 

Pensions Committee, I will chair it for a couple more hours. 

If a taxpayer was watching this hearing and knew a little bit 

about the subject matter but knew about what happened in West, 

Texas or other places, was justifiably concerned and even frightened by this, what can each of you tell them about what is going 

to happen that is measurable, significant progress in the next 6 

months from both of your agencies? Can you do that in a minute 

and a half each? In other words, what can we expect in the next 

6 months? 

Mr. STANISLAUS. What we have done and will continue to do is 

inform their local planning and response officials so they can identify risk from chemical plants and take actions to minimize, prevent or respond to those risks and include local citizens in safe 

evacuations and safe shelter in place. Those are critical issues 

prominently heard throughout the Country. 

Mr. MICHAELS. From OSHA’s point of view, we have just released new guidance on the safe handling of ammonium nitrate. It 

is aimed at our staff to make sure we enforce much more clearly 

at all these facilities and now when we start visiting these facilities, we will be doing more of that. 

We are also working very closely with trade associations and employers to make sure everyone in this industry understands exactly 

what the risks are and what we expect of them. We issued this last 

week and I think we will see some real impact over the next few 

months. 

Senator CASEY. I would ask you both to infuse into your work the 

same sense of urgency that you have heard here and as articulated 

by Senator Boxer. 

It is one thing to have us conveying a sense of urgency and worry 

about what might not get done if we don’t push, but it is even 

greater outside with taxpayers and folks who are worried about 

this issue. We all have a responsibility and we want to make sure 

we are discharging ours in the oversight capacity. 

Senator, do you have anything before we go? 

Senator BOOZMAN. Mr. Chairman, I would ask unanimous consent to include comments from the Agricultural Retailers and the 

Fertilizer Institute in the record. 

Thank you all for being here today. 

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Senator CASEY. Without objection. 

[The referenced information follows:] 

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Senator CASEY. Our hearing is adjourned. 

[Whereupon, at 10:45 a.m., the hearing was adjourned.] 

[Additional material submitted for the record follows.] 

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