Executive Order 13650 Improving Chemical Facility Safety and Security Public Listening Session, Webinar

Date: December 16 , 2013

Location: Online Webinar and te leconference

Introduction and Opening Remarks

• Sherr y Witt , SRA International , remarked:

o S he would be the facilitator for the Webinar

. o N otes from the Webinar will be published to the Federal R egister

. o The goal of the session is to provide an overview of the Executive Order 13650 ( E O ) to date and provide a forum for the public to give comments.

o Slides will be posted on the F ederal R egister in addition to the notes.

o Reviewed W ebinar etiquette

. o Reviewed the agenda :

 Webinar will be open until 6:30 p.m. EST

 Gave i ntroductions

 R egistered speakers to present their comments

 There will be an o p portunity for additional speakers to present

. Summary and Progress to Date

• Jordan Barab , Department of Labor Occupational Safety and Health Administration ( OSHA ), EO Working Group Co

- Chair, Deputy Assistant Secretary of Labor, discussed the goals of the EO and summarized the Webinar’s structure:
o He i ntroduced o ther officials on the call:

 M athy Stanislaus , Environmental Protection Agency (EPA), EO Working Group Co

- Ch air, Assistant Administrator, Office of Solid Waste and Emergency Response

 Barry Breen, Environmental Protection Agency (EPA)

 Lisa Long, Department of Labor/ Occupational Safety and Health Administration (OSHA)

 Scott Breor, Department of Homeland Security ( DHS )

 Capt. Drew Tucci, DHS/U.S. Coast Guard

 Dean Dickinson , Department of Justice/Bureau of Alcohol, Tobacco, Firearms, and Explosives ( ATF )

 Paul Bo mgardner, Department of Transportation ( DOT )

 Karis Gutter, Department of Agriculture ( USDA )

o On August 1, President Obama signed the E xecutive order.

o Each agency has an important role under the E xecutive order.

 OSHA is responsible for h ealth and safety

.

 A TF is responsible for p ost

- blast investigation s

. EO 13650 Page 1 Public Listening Session Webinar Notes December 16, 2013 EPA is responsible for f acility safety and the p rotection of human health and environment

.

 DHS/Infrastructure Protection is responsible for chemical facility s ecurity

. o The F ederal G overnment w ant s to improve how information is shared among F ederal partners and also with the regulated and public communit ies.

o The g oal of the working group is to improve the way all levels of government and the private sector work together to improve safety and se curity in the chemical industry.

o T he working group e stabli shed sub

- working groups :

 Sections 3 and 4 , led by EPA a nd DHS, focus on i mproved coordination through the following:

• Establish ing a p lan to improve the way the Federal Government work s together with regulators, first responders, industry, and communities

.
• Established a pilot program in EPA Region II.

o Uses the infrastructure created under the Emergency Planning and C ommunity R ight

- T o
- K now A ct for Local Emergency Planning Committees (LEPC )

o Trying to establish methods for improving access to chemical inventory listings and other data necessary for first r esponders

o Pilot held a listening session on Nov ember 19 , 2013 for local stakeholders

.

 Section 5 , led by DHS, focuses on i nformation c ollection and sharing through the following:

• Examin ing ways to improve how chemical facility information is collected and d isseminated

• Developing potential options for a data

- sharing process that will coordinate data across the different organizations

 Section 6 , led by OSHA, focuses on p olicy and s tandards m odernization through the following:

• Developing options to improve exis ting risk management practices , including options for i mprov ing the storage, handling, and sale of ammonium nitrate ( AN )

• Reviewing a list of chemicals on the Chemical Facility Anti

- Terrorism Standards (CFATS) Chemicals of Interest list

• Reviewing chemical hazards covered by the Risk Management Program ( RMP ) and other standards

 Section 7 , led by DHS, focuses on c ollection of b est p ractices through the following:

• Stakeholder outreach to develop solutions that will be implemented in the fina l stages of the EO

• Coordinating the listening sessions

• Ms. Witt established some W ebinar ground rules : EO 13650 Page 2 Public Listening Session Webinar Notes December 16, 2013o Consensus is not expected

. o Comments can be submitted to eo.chemical@hq.dhs.gov

. o Verbal comments on the W ebi nar will be limited to 5 minutes

. o EO Working Group members may ask clarifying questions

. o Participants who are not pre

- registered may request to speak during the open comment period using the Webinar’s question

- and

- answer ( Q&A ) window.

o Comments may also be submitted through the Federal eRulemaking Portal at http://www.regulations.gov using Docket Number DHS

- 2013

- 0075.

o Comments may also be mailed to: NPPD/ISCD/Mailstop 0610, Department of Homeland Security, 245 Murray Lane SW, Arlington, VA 20598

- 0610.

Pre

- Registered Speakers :

• Rom Chittim, Americ an Petroleum Institute (API), made the following comments :
o Stated that he would focus his remarks on safer alternatives commonly known as inherent safety technologies (IST)

o There are several ways to conduct risk reduction:

 Passive

 Active

 Procedural

 Inherent

o Facilities should address risk holistically and use all four strategies , not just using inhere nt safety as the only factor.

o The Center for Chemical Process Safety (CCPS) published a book , Inherently Safer Chemical Processes: A Life Cycle Approach (2008), on inherent safety design and implementation that is based on site and process decision

. CCPS i ndicates that such work is best done during the conceptual design phase and should not be forced ad hoc by regulation s or be conducted through bolt

- on functions

. o API says that the G overnment must first determine if the New Jersey IST program has solely been responsible for improved safety or security

. o API is not aware of any data that shows improved performance of the New Jersey pilot program. It argue s that it is very difficult to successfully measure such IST programs.

o Efforts to measure inheren t safety are still in the development stage. In the absence of rigorous metrics, it is difficult to measure the contributions that IST makes to improvements on safety and security.

o Inherent safety should not be seen as a silver bullet.

• Jennifer Gibson, Nat ional Association of Chemical Distributors (NACD) , remarked:

o NACD uses a Responsible Distributor ® program to implement measures to improve safety for its members. Its members must develop and implement those measures or lose their membership.

EO 13650 Page 3 Public Listening Session Webinar Notes December 16, 2013o The chemical regulatory system in this country is complex and thorough. NACD members have the benefit of resources from trade associations to navigate these regulations.

o NACD has a 14

- page ( and growing ) regulatory checklist for members.

o NACD members understand the impo rtance of the regulations

. o NACD recommends that current regulatory requirements should be improved before adding any new regulations.

 Compliance assistance and outreach should be a primary focus. Most agencies have excellent materials available, but it is difficult to find those materials.

 Regulatory language needs to be clear

.

 Checklists and simple measures need to be provided.

o NACD has serious concerns about mandated IST.

o Regulation and enforcement must be consistent. IST and mandatory duty clauses are difficult to enforce due to varying inspector interpretations of the regulations , causing differences in regulatory enforcement

. o NACD has concern s about one agency acting as an inspection proxy for the others , with this one agency holding data and other information in a single database.

o NACD has advice for identifying outliers :

 All stakeholders need to i ncrease outreach to local officials and LEPCs

.

 The Federal G overnment shou ld l everage trade group programs to distribute materials to known facilities while focusing G overnment resources on finding true outliers.

o A q uestion was asked by Lisa Long (OSHA) : Does Ms. Gibson have any comment s on performance versus prescriptive regulation ?

 Ms. Gibson responded: A helpful guidance document is the most important , and NACD the use of performance based regulation.

• Jeff Gunnulfsen, American Fuel and Petrochemical Manufacturers ( AFPM ) , remarked:

o AFPM supports both the EO listening session process and improved information sharing among Government agencies

. o AFPM provided the following comments :

 EPA tried joint inspections in the past , and it ended up being very time consuming for industry and agencies. We encourage the work ing group to review what happened during this effort before taking a joint inspection approach

.

 Security information for sites should only be shared with those that have a valid need to know when sharing data outside of G overnment stakeholders.

 The regulat ion focus should remain on current regulations rather than on the creation of new regulations.

 Urged the working group to talk to the Small Business Administration

EO 13650 Page 4 Public Listening Session Webinar Notes December 16, 2013o March 1 is the timeframe for new Emergency Planning and Community Right

- To

- Know Act ( EP C RA ) requirements. This is a good opportunity for EPA to share more information to a specific audience

. o A question was asked by Barry Breen : Can Mr. Gunnulfsen discuss the March 1 timeframe and what opportunities can be realized?

 Mr. Gunnulfsen responded: It is a great opportunity for EPA to make aware to those affected by EP C RA guidelines that there are these other i nitiatives occurring related to the E xecutive O rder.

• John Gustafson, Retired N ational R esponse T eam (NRT) /EPA , remarked:

o He c omplemented the e ffort and is impressed at the input from local responders.

o However, he has c oncern s that the SERCs are not providing many comments. LEPCs have also been quiet.

o There is a report stating the number of active LEPCs. It would be helpful to find a database of active LEPCs to use for communication.

o There are several issues he sees in the current regulatory landscape :

 The General Duty Clause is causing some confusion. A more enhanced interpretation of the clause is neces sary to guide future discussions.

 There are opportunities with the NRT

- 1 document , which provides guidance to LEPCs on the preparation and implementation of hazardous materials emergency planning . It was updated once in electronic form. It should be updated and distributed to LEPCs again.

 NRT

- 1 was the only legislative requirement for national response teams that came out of the EP C RA.

o There are opportunities for outreach:

 The NRT March Conference should include the EO Working Group

.

 There is another summer conference in Texas

.

 The Continuing Challenge Conference in Sacramento

. o He has some concerns about resources. It may be necessary to reach out to non
governmental organizations to do some of this work defined by the group. Funding and time are at a premium.

o The NRT did about 40 pr ojects from 1995 onward. They used a management by objectives process . It used a one

- page statement developed under a consensus effort. Please consider this when making decisions over the next year.

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

o She wanted to respond to Mr. Gustafson’s comments :

 The LEPC vision has not been fully realized

.

 There needs to be caution regarding relying on a network that does not necessarily exist.

 There is funding from the Dep artment of Transportation (DOT) for LEPCs

. The hazardous materials ( HAZMAT ) community pays fees that provide that funding.

EO 13650 Page 5 Public Listening Session Webinar Notes December 16, 2013 Due to a change in Federal HAZMAT transportation law , t here is an i nformation

c ollection r equest out to LEPCs asking for information that would show what progress t hese entities have made

. o IME is concerned that the information that may be shared with first responders is not appropriate for a public forum. She considers any information flowing through an LEPC

as public information

. o IME has submitted a number of recomm endations to the working group regarding how safety and security can be improved.

o A number of key deadlines have passed regarding the EO , and asked when the Government will arrive at some of the decisions so we can respond.

 IME is s pecifically interested in section 6.b addressing the h andling and storage of a mmonium n itrate.

o Ms. Long , in response, stated that she has been working on Section 6 .b. The working group has been meeting deliverable deadlines to the White House and hopes to have the section 6 doc umentation available to the public soon. They will also be posted onto

a W ebsite.

• Jeff Sloan, American Chemistry Council (ACC) , remarked:

o Represents the Chlorine Chemistry Division of the ACC

o Addressed several issues related to chlorine chemistry :

 Various water treatment facilities have moved from c hlorine to s odium hypochlorite.

• Some incorrect conclusions have been drawn by these facilities making this change.

• This is an uncommon example of an alternative chemical providing the identical efficacy.

• A vast majority of chemicals do not have such good substitutes.

 Chemical substitution is not a simple process. Many site

- specific factors come into play. There are always advantages and disadvantages.

 Additional F ederal programs are not needed to prompt faci lities to focus on chemical safety and security. CFATS, RMP, Process Safety Management ( PSM ) , and HAZMAT programs all exist to regulate the chemical industry. Additional regulations may become paperwork drills that draw resources from these programs’ prope r work

.

 We are c oncerned that there are limited methods on measuring the metrics and data provided from any IST implementations.

o ACC encourages the G overnment’s efforts in improving its outreach and information coordination to the chemical community

.
• Linda Phillips, LEPC California Region 1, remarked:

o She is speaking as an individual and not speaking on behalf of her LEPC.

EO 13650 Page 6 Public Listening Session Webinar Notes December 16, 2013o C hemical Safety Board (CSB) recommendations need to be carried out promptly and properly. CSB recommendations should not be left for 10 years or more before implementation.

o There are a number of tasks that have fallen by the wayside:

 Public e ducation on safety and what to do if there is a concern about a facility: who to contact, what to do, what to report.

 How to support individuals and community groups when they want to report facility issues.

o West, Texas showed us that LEPCs cannot necessarily understand and distribute the information received.

o It’s important to make sure that emergency response agencies receive all of the information they need.

o Transparency to the public also needs to be restored.
During the Open Comment Period the Following Participants Spoke:

• Cynthia Hilton, IME, remarked:

o In response to a Webinar participant that spoke about LEPC fund ing : HAZMAT fees received are not restricted. Training grants must be used for training responders in transportation events, but other monies can be used at the discretion of the LEPC.

o It would be good to see nationwide metrics on how the money is used.

o Ba rry Breen , EPA, asked a question: Could Ms. Hilton reiterate the name of th e program and where the fees go?

o Ms. Hilton responded: Th e law ( 49 U

. S

. C

. 5116 ) states how the funds are received and distributed . The funds are paid from shippers and carriers of hazardous mat erials. The funds go to DOT

– Pipeline and Hazardous Materials Safety Administration . The funds are distributed to State Emergency Response Commissions ( SERCS ) and passed along to LEPCs. http://phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Hazmat/FY2013_H MEP_Grant_Awards.pdf

• Paul Orum, public citizen , remarked:

o He agrees with the speaker who discussed how all components of safety should be included in risk management. He, however, thinks that inherent safety is not consistently included in the current regulatory scheme.

o IST can be an effective deregulatory strategy. In a recent report entitled “Preventing T oxic Terrorism,” he produced a list of things that would not be done when safer technologies are used

. o The biggest missing element from the regulations is that avoided costs and savings are not quantified.

• John Gustafson, NRT/EPA retired, remarked:

o In rega rds to security problems with LEPCs, it depends on how the LEPCs are managed. His LEPC has a clearance process for those inquiring about information.

o The EO should explore how to secure information when sharing it.
EO 13650 Page 7 Public Listening Session Webinar Notes December 16, 2013o In regards to DOT grants and their useful ness, his LEPC did a commodity flow study and provided it to the DOT . If the DOT were able to lay out criteria for funding, it would be useful to everyone. Research and guidance can help provide LEPC ideas.

o These are the only source of funds available for LEPCs at this time now that the Environmental Project Risk Analysis ( EPRA ) grants and the Superfund monies are gone.
Closing Comments

• Lisa Long, OSHA, thanked everyone for their participation and thoughtful comments. As more material is developed, it will be posted to the W ebsite. https://www.osha.gov/chemicalexecutiveorder/index.html and https://www.dhs.gov/topic/chemical

- secur ity

• Ms. Long also thanked participants and reminded them that additional comments could be submitted to eo.chemical@hq.dhs.gov

• Ms. Witt mentioned the interagency representatives will remain online until 6:30 p.m

.

EO 13650 Page 8 Public Listening Session Webinar Notes December 16, 2013Participant Analysis:

Stakeholder Group 12/16/2013 Webinar

Chemical Producer 7
Ag Supply 3
Chemical Storage 2
State/Local Regulator 10
First Responder 2

Media 2
Owner/Operator 7
Industry Association 8
Labor Organization 1
Federal Representative 23
Environment/Community 0
Consensus Organization 0

Other: Unk 13

Citizen 0

Education 4

Security 0

Vendor 0

State/Local 1

Tribal 2

Health/Research 1

TOTAL 86

EO 13650 Page 9 Public Listening Session Webinar Notes December 16, 2013

## Executive Order 13650 Improving Chemical Facility Safety and Security
December 16, 2013 Listening Session Webinar
Hosted by the Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), and the Department of Labor (DoL)
Public Listening Session Webinar 4:30 p.m.

– 6:30 p.m.
Agenda Welcome and Overview Jordan Barab , DoL, Executive Order 13650 Working Group Co

- Chair Occupational Safety and Health Administration, Deputy Assistant Secretary of Labor
Interagency Representatives Mathy Stanislaus and Barry Breen Environmental Protection Agency (EPA)

Scott Breor , Department of Homeland Security (DHS)
Captain Drew Tucci , DHS, United States Coast Guard

Dean Dickinson , Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
Paul Bomgardner , Department of Transportation (DOT)

Karis Gutter , Department of Agriculture
Lisa Long , Occupational Safety and Health Administration (OSHA)
Ground Rules for Public Listening Session Sherry Witt , Facilitator
Comments from Listening Session Participants
Closing Remarks Lisa Long , Occupational Safety and Health Administration
Adjournment
Note: For more information on EO 13650, please visit https://www.osha.gov/chemicalexecutiveorder/index.html

. . Persons may also submit written comments to NPPD/ISCD/Mailstop 0610, Depar tment 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 (Docket No. DHS

- 2013

- 0075).