EO 13650 Public Listening Session Page 1

December11, 2013 Orlando, FL Executive Order 13650 Public Listening Session, Orlando, FL

Date: December 11, 2013

Location: Valencia College, 8600 Valencia College Lane, Auditorium 150, Orlando, FL 32825
Introduction and Opening Remarks

Kate Finnerty , Moderator, introduced the proceedings:

 Welcomed everyone to the listening session and introduced the panel

 Mentioned future listening sessions and Webinars

 Written comments can be provided to eo.chemical@hq.dhs.gov . These comments will be included in the docket

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 Announcements :

o Please put phones on vibrate

. o Session is being recorded for note

- taking purposes

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 Emergency exit information and restroom locations were pro vided for the facility

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 Purpose: Provide stakeholders with an overview of the Executive Order 13650 ( EO ) process and provide an opportunity for the public to comment and give feedback and suggestions

. Jack Massey, Special Agent Supervisor, Florida Department of Law Enforcement :

 Welcome d the group to Orlando

 Mr. Massey operate s the domestic security section for the Florida Department of Law Enforcement, which provides service to nine counties in the local Orlando region.
Terry Harrison, Acting Reg ional Administrator (Atlanta), Occupational Health and Safety Administration, Department of Labor :

 Many people don’t think of this region as one with significant hazardous chemicals ; however, we have diverse manufacturing and agricultural businesses.

 Previ ously served as the A ssistant A rea D irector in Jacksonville, Florida at a time when there was an explosion involving a chemical called T2 (a fuel additive). Another incident involved MEI, a manufacturer of rocket propellants , where an explosion occurred.

 The se dangers are not new to those who are located in the southeast.

 Thanked the group for being present
Chris Russell, Federal On

- scene C oordinator, E nvironmental P rotection A gency :

 Mr. Russell is stationed in Florida

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 Mr. Russell acknowledged that man y people were present in the room with who m he has worked either in the past or on a frequent basis today.EO 13650 Public Listening Session Page 2

December11, 2013 Orlando, FL  Articulated that the listening session is an opportunity for the public to help identify and close gaps in chemical safety and security

 Thank ed the group for coming
Amy Graydon, Branch Chief, Office of Infrastructure Protection, Department of Homeland Security:

 DHS is responsible for securing facilities with the highest risk via the Chemical Facility Anti

Terrorism Standards (CFATS).

 In this region, DHS has 19 inspectors and a regional director , covering 126 facilities with a preliminary or final tier.

 DHS will continue to work with colleagues and industry to improve chemical safety and security.

 Section 6.b addresses working with ammonium nitrate

. DHS is in the process of developing the Ammonium Nitrate Security Program final rule ; therefore, DHS participants today will be limited in what they can discuss in this area.

 DHS also has voluntary programs as well. Marty Smith, the local protective secur ity advisor , is here today to represent that effort.

 DHS is leading two sub

- working groups within the EO . One focuses on information collection and sharing. We developed a report and analysis to review how data is collected and shared with stakeholders. We have found that there is no common taxonomy between safety and security. The Working Group is looking to develop a common taxonomy. We’ve also found the Chemical Abstract s Service ( CAS ) numbers are not consistent. Additionally, we are looking for

wa ys to uniquely identify chemical facilities.

 DHS is also leading a working group to identify best practices. We are i nterested in knowing where you go to learn about best practices and hearing about the best practices themselves.

Scott Calhoun , Commander , St. Petersburg Sector, United State Coast Guard ( USCG ) :

 We have a history of working with F edera l, S tate, local , and tribal agenc ies

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 USCG has two roles that to h ighlight : ( 1 ) USCG provide s F ederal on

- scene response coordination ; ( 2 ) USCG provides Federal maritime security coordination, which works closely with area maritime security committees.
Valentina (Tina) Close, Explosive s Industry Programs Branch , Bureau of Alcohol, Tobacco , Firearms & Explosives (ATF) :

 One role of ATF is to enforce laws r egarding explosives, mainly regarding explosives commerce.

 ATF has a cadre of investigators who conduct inspections. They have approx imately 11,000 license e s in the U

. S

. at this time.

 ATF is interested in working in partnership with industry to improve industry safety and security. That is why we are here today.
John Heneghan, Regional Director, Office of Hazardous Materials Safety, Pipeline Hazardous Materials Safety Administration, Department of Transportation :EO 13650 Public Listening Session Page 3

December11, 2013 Orlando, FL  Our organization help s to ensure that ch emical companies are shipping chemicals correctly.

 While we don’t have a role in fixed facility safety and security, we do oversee all areas of transportation.
Lisa Long, Director, Office of Engineering Safety, Occupational Health and Safety Administratio n ( OSHA ), Department of Labor:

 I want to thank you all for coming. I know we may have many different views and perspectives on chemical facility safety , and I look forward to an honest and engaging listening session.

 We have now hosted three listening ses sions in Texas City, Washington, D

. C

. , and, just last week, Springfield, IL . We have also hosted one Webinar

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 We have valued your feedback and look forward to continuing the conversation with additional listening sessions, both in person and via Webinar

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 On August 1st of this year, President Obama signed an Executive order to improve the safety and security of chemical facilities and to reduce the risks of hazardous chemicals to workers and communities.

 Each of our Federal agencies has an important role un der the Executive order . For example, DHS is primarily focused on security at chemical facilities , and OSHA is principally focused on worker health and safety at these facilities. EPA’s role is facility safety and the protection of human health and the e nvironment in chemical facility and in the communities located near chemical facilities.

 We are all committed to improving the way facilities and local governments relay and share information and to improving the way we all work with communities, especially underserved

ones where access to information is challenged.

 We look forward to hearing from as many stakeholders as possible at various stages in our process. The listening sessions are very impo rtant to me because your feedback is important to this process.

 The main objective of the working group is to improve the way that all levels of government and the private sector work together to help improve the safety and security of chemical facilities and surrounding communities.

 That means improving everything from operational coordination and information sharing to modernizing regulations and identifying best practices.

 To tackle such a broad range of topi cs, the Interagency Working Group divide d the work and deliverables into manageable sections corresponding to the sections in the Executive order.

 Each of these sections is being addressed by a sub

- working group, and I would like to take a few minutes to discuss the various areas of responsibility and progress each group has made.

 To best coordinate this effort , we have established four sub

- working groups.

 The first group focuses on sections 3 and 4 of the Executive order , improving operational and Federal coordination. These sections are co

- chaired by the Environmental Protection Agency and DHS (the Coast Guard).EO 13650 Public Listening Session Page 4

December11, 2013 Orlando, FL o We are currently developing a plan to improve the way we

— regulators, emergency

responders, chemical facility owners and operators, and communitie s — work together.

o Sections 3 and 4 also addresses how best to share explosive materials storage data and Chemical Facility Anti

- Terrorism Standards (CFATS) data.

o An important effort to highlight here is the pilot program established in EPA’s Region 2. The pilot is working as a sub

- work ing group under the Region 2 Regional Response Team (RRT) and is using the infrastructure created by the Emergency Planning and Community Right

- to

- Know (EPCRA) Act.

o The pilot is defining high

- risk and inspection prioritization among the agencies, identifying how best to share information and data between agencies and first responders and determining methods for improving access and content of chemical inventory Tier II filings.

o The sub

- work ing group has created a matrix to iden tify current and future activities to improve coordination , which will serve as a foundation for the plan.

o P ilot participants recently held their own listening session on November 19th.

 Section 5 is being chaired by the Department of Homeland Security’s Of fice of Infrastructure Protection and is tasked with examining how to improve the way we collect and disseminate chemical facility information. The sub

- working group is looking at information collection and sharing among the various agencies , as well as am ong State and local entities. We are in the process of producing a proposal for a coordinated, flexible data

- sharing process to track regulated chemical facility data.

 Section 6, chaired by the Occupational Safety and Health Administration, primarily focu ses on policy and standards modernization.

o This section is developing proposals to improve the storage, handling, and sale of ammonium nitrate ; is reviewing a list of chemicals to include in the CFATS Chemicals of Interest list ; and is improving the chemic al hazards covered by the Risk Management Program and the Process Safety Management Standard.

o Section 6 also addresses improving existing risk management practices.

o On December 3, OSHA issued a Request for Information ( RFI )

. o In the RFI, OSHA seeks input o n its Process Safety Management standard ; on potential updates to its Explosives and Blasting Agents, Flammable Liquids and Spray Finishing standards ; and on changes to Process Safety Management ( PSM ) enforcement policies.

o The agency also asks for information and data on specific rulemaking and policy options and on the workplace hazards that these rules and policies address. OSHA will use the information received in response to this RFI to determine which actions, if any, i t may take.

o The RFI was posted on December 3 rd and was published in the Federal Register on Monday, December 9. The RFI public comment period will last for 90 days.

 Section 7 is also being chaired by the Department of Homeland Security’s Office of In frastructure Protection. Section 7 involves stakeholder outreach and best practices and will address challenges and develop solutions to be implemented in the final stages of the EO.EO 13650 Public Listening Session Page 5

December11, 2013 Orlando, FL  We have been hard at work putting together a schedule and organizing pub lic listening sessions across the country to ensure that our working group will receive a broad range of feedback from communities and stakeholders.

 Today’s listening session continues an important dialogue among communities and stakeholders in how we can help make chemical facilities and our hometowns safer places.

 One of our main goals in engaging stakeholders is to identify, develop, and put in to place best practices.

 On August 30 of this year, EPA ; the Occupational Safety and Health Administration (OSHA ) ; and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a chemical advisory that provides information on the hazards of ammonium nitrate (AN) storage, handling , and management.

 The advisory provides lessons learned for facility owners and operators, emergency planners , and first responders from recent incidents, including the explosion in West, Texas, to help prevent AN incidents.

 In the coming weeks and months , each of our sections will have progressed on their subject area deliverable s. Communicating status updates to stakeholders from the broad set of interest areas is a priority for us.

 As many of you know, the EO called for a number of 90

- day deliverables that were delayed up to 30 days due to the Government shutdown. The working g roup has met its deadline for the first set of deliverables.

 However, some of the 90

- day deliverables were draft internal deliberative documents and will not be available for public review. One document that will be released to the public is under EO sect ion 6(a): Options for Improved Chemical Facility Safety and Security. This document is currently being reviewed by the White House, and we look forward to your feedback once it is released.

 As I mentioned before, we are holding public listening sessions via Webinar and across the country to ensure that we hear from communities and stakeholders. Your thoughts and input are invaluable to our team.

The moderator provided a set of ground rules and asked p resenters to c ome forward to provide
comments:

 The goal is to hear from a diverse set of opinions and a range of suggestions. Consensus is not expected at this session.

 If anyone wishes to provide further comment, please use the email address at eo.chemical@hq.dhs.gov

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 Each speaker will state their name, o rganization, and stakeholder group.

 Each speaker will be limited to 5 minutes.

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

 Open comment periods will be provided at the end of the session if there is time available.EO 13650 Public Listening Session Page 6

December11, 2013 Orlando, FL John Brulia , Director of Safety and Compliance, Austin Powder Company, provided the following
comments:

 In the past few years, I’ve participated in programs regarding the use of AN, which require a security clearance.

 Our company is the oldest explosives company in the world , and we are one of the largest.

 We are an active member of the Institute of Makers of Explosives (IME).

 We provided manpower and equipment to remake IME ’ s safety video on responding to highway incidents involving commercial explosives. This video is designed to help first responders become aware of hazards and risks associated with incidents along highway s

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 We support IME ’ s previous comments to the working group.

 It is imperative that first responders have the proper training and accurate informati on to respond to incidents. As an IME member, we embrace the belief that we have an obligation and incentive to ensure that emergency responders have this knowledge.

 ATF only require s a one
- time notification to local emergency responders ( per 27 CFR 55 5 .20 1). We would support a periodic reporting requirement and encourage this to be a high priority for the working group.

 In the wake of West, Texas, our company reached out to more than 100 of our local responders, most of whom are volunteers.

 We believe t hat ATF registration should suffice for meeting the requirements of the DHS Ammonium Nitrate Security Program (ANSP)

. We disagree with those who assert that the ANSP would have prevented the traged y in West, Texas. It would not have prevented that event , and it will not enhance security at facilities that are already registered with the ATF explosives program.

 We strongly urge DHS to issue a supplemental notice of proposed rulemaking to include an exception for the registration of facilities engaged in com merce of ammonium nitrate

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 We have a very strong program in place under ATF today. All of our personnel are vetted , including through fingerprinting and background checks. The ATF issues a notice of clearance for those who meet the criteria. This notic e is used by facilities to determine who will be on their list of authorized persons and who will represent their company in ordering and receiving explosives.

 DHS and ATF should share the Terrorist Screening Database ( TSDB )

. It is difficult to understand why we cannot agree on this. I would encourage this to be a high priority.

 Ms. Long asked a clarifying question : We’ve heard from others that i t is often difficult to engage local first responders. Do you have any examples of how you have been able to do that?

o Mr. Brulia’s responded : T enacity. These are our neighbors, many of whom have regular jobs. We reach out directly to these volunteer organizations. We get involved with their training and often attend their meetings . We have had a very good response from the volunteers. We ensure that they have the Material Safety Data Sheet ( MSDS ) and Emergency Response Guide information for each hazardous item they may encounter.EO 13650 Public Listening Session Page 7

December11, 2013 Orlando, FL Mary Hartn ey, President, Flor id a Fertilizer & Agri chemical Association (FFAA) , Lakeland, Florida , provided the following comments:

 FFAA’ s mission is to promote the responsible use of plant nutrients and crop protection products in Florida. Our members are fertilizer and crop protection manufacturers, dealers, and distributors.

 Our organization is your conduit to organizations in Florida that ope rate similar ly to the one in West, Texas.

 I would like to describe some of the things we have done regarding the use of AN for agricultural

uses

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 Following the event in Oklahoma City, we worked with the ATF to promote two voluntary AN handling programs: Be Secure and Be Aware for America.

 Following 9/11, our State association worked with numerous farm organizations, the Florida Department of Agriculture and Consumer Services , and the University of Florida to create the Florida Agriculture Security Task For ce. We called it FAST. We promoted FAST security tips on AN storage and transportation.

 In the 2000s, our State had problems with methamphetamines. We worked with the Department of Agriculture on a grant program to install locks on anhydrous ammonia nurse tanks, so the contents could not be stolen for use in meth production.

 We have been fortuna te that ATF has been so willing to work with us.

 We’ve been in contact with DHS agents. We’ve had presentations on the CFATS program and work well together t o promote compliance.

 Following the tragic events of April 17 th , we worked with the Agriculture Retailers Association and The Fertilizer Institute to distribute an online compliance assessment tool for agriculture retail facilities . This tool give s retai lers the ability to support continual improvement with our compliance efforts.

 My colleague , Kevin Runkel , provided comments in Springfield, IL regarding many of the Federal and State programs under which we operate. This includes programs from DHS, EPA, OSHA, the Department of Transportation ( DOT ) , the Department of Labor , the Transportation Security Administration ( TSA ) , and the United States Coast Guard

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 This past summer, we’ve been particip ating in local emergency planning councils. We provided safet y presentations at three of these and at the state emergency response commission. W e’ve been invited to hold a panel discussion at the 2014 Florida Emergency Planning Association meeting

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 We encourage you to focus on promoting compliance and enforcement o f existing regulation. FFAA supports risk

- based tiered approaches to risk

- based safety and security measures.

 We oppose recommendations that would hold retail operations to OSHA ’ s PSM , but would like to work with you to identify best practices in these l ocations.

 We are committed to honoring the memories of those who have died in West, Texas, and we look forward to working with you to ensure that nothing like this ever happens again.EO 13650 Public Listening Session Page 8

December11, 2013 Orlando, FL  A clarifying question was asked by Ms. Graydon: Do you have suggestions for how to reach companies that are not members of your associations ?

o Ms. Hartney’s responded : FFA A enjoys a great working relationship with our regulatory agency, the Florida State Department of Ag riculture and Consumer Services

. They license and register fertilizer companies in Florida. While a company may not be a member of our association, they are required to register with this State regulatory agency.
Matthew Marshall, Florida Association of HazMat Responders , provided the following comments:

 I am here today representing the E

- Plan users group. Additionally, I am also a first responder and the chairperson of the Florida Association of Hazmat Responders.

 I am also a member of our local emergency planning commission , and I s it on a sub

- committee of State Emergency Response Commission (SERC) Training Task Force.

 Thank you for holding these listening sessions. For me, it’s all about safety.

 I believe the EO is a great opportunity for Federal, State, local, and tribal groups to come together to create an open dialog ue and share information.

 Twenty

- seven years ago, the Emergency Planning and Right

- to

- Know Act ( EPCRA ) became law. Since that time, it has gone through some changes. We also need to look at fire codes. Both ar e used to assess the safety and security of our local jurisdictions. Since EPCRA was put into law , there have been unfunded mandates. In Florida, w e charge a fee to file Tier II reports

. T he proceeds are then used by State and local agencies to complete their side of regulatory requirements.

 Fire M arsha l ls are a great group to get to know , as they are out in the field inspecting outlier facilities.

 Local first responders ( e.g., police , fire , emergency managers ) need the information already known to Fede ral and State agencies. We can use a single database, called E

- Plan. This product is in use in 3 9 States

. This year, 34 States have submitted their Tier II information for just over 300,000 facility sites.

 The product is Internet accessible. It p rovides access to both Tier II filings and MSDS sheets for specific chemicals onsite.

 In this past year, 55,000 facilities have entered t heir information directly into E

- Plan. Part of this process includes collecting email addresses.

 The 11 States that a re not submitting data into E

- Plan may be doing so for a variety of reasons. Some may be concerned about how the information will be used , including by Federal and State agencies

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 I am presenting you today with 21 letters of support , including from EPA Re gion 4 ; Department of Defense ; NORAD ; Secret Service ; DHS ; National Emergency Management Association; the States of New York, Louisiana, Florida, Minnesota , Missi ssi p p i, North Carolina, Oregon, New Mexico, Alabama, and Washington ; , Collin County LEPC (Texas) ; Duchess County LEPC (New York) ; Erie County (New York) ; Raleigh (North Carolina) , and Lexington (South Carolina)

.EO 13650 Public Listening Session Page 9

December11, 2013 Orlando, FL  You asked abou t how to make this plan work. E

- Plan costs money, but we can use funds collected by EPA through fines. Today EPA co llects on average $130M annually, of which around $44M is returned to locals. Why don’t we use the remaining $80M to fund our LEPCs and State Emergency Response Commissions, rather than returning it to the F ederal G overnment general fund?

 A clarifying que stion was asked by Mr. H eneghan : The pipeline hazardous materials safety administration writes the Emergency Response Guidebook ( ERG ) . We also have a hazmat registration program that requires all shippers of hazardous materials to register with us. That money is then sent to the commun ities to train the LEPCs. The E

- Plan information you provided looks good , and I will be passing this information to my supervisors. Are you a member of the cooperative hazardous materials enforcement? There is a conference coming up in Florida. Are you familiar with it?

o Mr. Marshall ’s responded : He was not familiar with t he conference . He was advised by Mr. Heneghan to reach out to them to present this information to them.

 Mr. Marshall provided an additional comment that the funding returned to the locals from DOT and that Hazardous Materials Emergency Preparedness ( HMEP ) grant monies are limited to activities involving transportation emergencies. The T ier II filings are not related to transportation facilities. It is therefore difficult to use this funding to train people in industry at a facility. The funding and trai ning for transportation emergencies is in place, but we do not have permission to use this or other funding for facility training.

 A c larifying question was asked by Ms. Graydon: You mentioned that you were a member of the S ERC training task force. Do you have any e xamples of things that worked well involving training throughout the State ? If there was a best practice that could be shared, that would be helpful.

o Mr. Marshall responded : There needs to be a three

- tier approach : ( 1 ) attending conferences to get the word out ; ( 2 ) training users in their localities ; and ( 3 ) offering I nternet

- based training to reach those who cannot be reached otherwise.

Jeaneanne Gettle , Acting Director, Air Pesticides & Toxics Management Division, Region IV , Environmental Pr otection Agency, was introduced as a member of the panel

. Frank Raike, Lieutenant, Orange County Fire Rescue Department , provided the following comments:

 I am here to share what is not working : inspections. Fire inspections are usually conducted by staff assigned to fire prevention . Historically, these are senior, seasoned firefighters. The model of the fire service is based on individual inspectors who in the later stages of their career , closer to retirement. In recent years, we’ve hired more ci vilians and younger individuals, but they are demonstrating a lack of knowledge and skill, especially when it comes to specialty areas like chemistry, gas, and hazardous materials

. This issue is shown in both volunteer and career members.

 While there is a lot of training available, it can be very difficult to reach out to these facilities. The facilities themselves are often hiring people who are not well trained.EO 13650 Public Listening Session Page 10

December11, 2013 Orlando, FL  The Chemical Saf ety Board does a good job getting information out about failures. W e often hear about an accident that happened because someone didn’t appreciate the hazards involved.

 We have facilities that fire inspectors looked at, but they are only reviewed by that individual at that single point in time.

 As an example, t here was a major fue l distribution company in our area that began adding alcohol to their gasoline, as was mandated by the G overnment. That facility did not take this change into account regarding its fire suppression system and later found out that its system was not effect ive against alcohol.

 We need to reach out further and find ways to improve the current system of inspections , p erhaps by as signing inspectors who specialize in a specific area or by establishing a coordination group between EPA and other agencies to find one inspector who can look at a facility from multiple perspectives

.
 We have one inspector in central Florida . He has 69 facilities on the E

- Plan , which consumes his entire year. His workload is a constant struggle for him.

 A clarifying question was asked by Ms. Gettle : You spoke about training. Do you have any suggestions for us on what is a more effective way to reach out to those who need to be reached in training?

o Lt. Raike responded : T he statutes of the Env ironmental Protection Agency Code of Federal Regulations are very effective if th ey are read and understood

. He indicated that the National Fire Protection Agency (NFPA) has an excellent library, but most of the fire inspectors will only work off NFPA

- 1 ( Fire Code) and NFPA

- 101 (Life Safety Code)

. He has run into problems with people improperly imposing regulations either due to lack of context or understanding

. Gary Vogen, Vice President, Sales and Marketing, Yara North America , provided the following

co mments:

 Thank you for the opportunity to speak today.

 We are a global manufacture of nitrogen

- based products , which includes ammonium nitrate, anhydrous ammonia, and calcium nitrate

.
 We deliver solutions for sustainable agriculture and the environment and have a presence in over 150 countries around the world.

 We have committed ourselves to responsible stewardship of the fertilizers we produce . We invest in making our products more stable in normal application.

 We agree with the need for responsible and prudent regulation s . The regulatory programs represente d here today are inconsistent and create confusion and unnecessary paperwork.

 C urrent programs have not resulted in effective implementation or consistency in monitoring and enforcement.

 We urge y ou to include changes that ensure that farmers and growers have access to the fertilizer products they need to continue to be the most efficient producers in the world.

 We support action here through this dialog ue to improve coordination among the agenci es.EO 13650 Public Listening Session Page 11

December11, 2013 Orlando, FL  Our greatest challenge is in understanding how to interpret rules and how to properly attain regulatory compliance

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 We need to ensure that farmers’ interest s are protected.

 We are particularly interested in the regulation of AN , specifically the A mmonium Nitrate Security Program. We have done a lot of work over the past several years since the announcement of the proposed rulemaking with the Department of Homeland Security by feeding information and attempting to answer questions. Our objective i s to make this program more viable and beneficial to industry. We believe that current and proposed AN legislation already provides correct guidance , but there is some confusion on the specifics of that guidance.

 It is important to coordinate the exchang e of information among OSHA, EPA , and others and to ensure that information is interpreted consistently by all parties.

 We support the finalization of the AN Security Program, putting into place an effective solution. However, the program needs to be use r
- friendly without restricting access for growers and farmers.

 Ms. Graydon made a clarifying statement: Thank you for your comments. We wanted you to know that the USDA is a member of the working group but was not able to be here today.
Gina Hawkins, Gove rnment Consulting Services , provided the following comments:

 I have 32 years of solid and hazardous waste management and disaster recovery, some of which was as a first responder. I’ve also served as a policy analyst and as a faculty member. My
comments today will represent these different areas of experience.

 I was a f ormer research associate for the Florida Center for Solid and Hazardous Waste Management. I am a current faculty member for the Solid Waste Association of North America. I teach safety and materials processing facilities. I served for 17 years in disaster recovery for the City of Gain e sville as the Hazardous Committee Chair.

 I appreciate the EO making it clear that exi sting Federal and State laws are far from adequate in protecting our communities

.
 In the past, we have geared our work towards managing and mitigating risk. Today, we have an opportunity to go further by prevent ing risk.

 In Florida , there are 22 chemical facilities that each put m ore than 100,000 people at risk. Florida is fourth in the nation.

 There are more than 70 facilities that have switched to safe chemical processes that have zero catastrophic risk. Only two of those put more than 100,000 people at risk . T hese examples could easily be put in place at other facilities.

 EPA requires that chemical plans report their worst

- case accident scenario. As a result , we know that there are 473 facilities that pose a risk to more than 100,000 people. Toget her, these facilities more than 100M people at risk.

 Clorox has eliminated the poison ous gas risk by converting to a safer alternative. We believe that every facility that poses such a hazard can be converted to safer alternatives and should be required to do so.EO 13650 Public Listening Session Page 12

December11, 2013 Orlando, FL  Conversion triggered by these new requirements would create more than 8,000 new jobs.

 The EPA has the authority to issue new requirements in the form of regulations, guidance, and rules that could render future disasters improbable. EPA can eliminate unnecessary preventable disaster risks.

 Thank you for the opportunity to comment here today.

Juda h P r ero, Ass is t ant General Counsel , American Chemistry Council (ACC) , provided the following
comments:

 The EO notes that m easures can be taken by agen ci es using existing regulations. ACC agrees that there are opportu nities to enhance safety and security throughout industry. We’ve offered numerous recommendations over the past few weeks to this working group on how this can be achieved , addressing the fundamental issues while meeting the objectives of the EO. However, we are concerned that the working group has chosen to focus on proposals that address one small piece of the EO. We believe that the misplaced at tention to proposals relating to safer alternatives will distract from work in other areas of the EO that still need to be addressed and will lead to unnecessary and duplicative regulatory obligations that will not enhance safety and security.

 Existing re gulations focus the attention of owners and operators on operating safe and secure facilities

. As examples , consider the following regulations : OSHA PSM, EPA RMP, DOT Hazmat Regulations, and DHS CFATS. All of these programs as they exist today require op erators to take a hard look at the operations and do what it takes to make them safe r and more secure. Explicit safer alternative mandates aren’t needed. The goal of arriving at safety is implicit and site

specific , which should be done by developing eit her a process hazard analysis or a risk management plan.

 Operators need to take a holistic approach when addressing risk at a facility. These various programs and requirements needs to be addressed in concert so that the overall safety and security profi le for employees, the environment , and the community can be maintained at the highest level possible while allowing facilities to function. No single agency has the legal authority to perform this task, nor is one capable of doing so.

 There are numerous c hallenges and pitfalls to a regulatory mandate to evaluate safer alternatives . For one, what does safety mean? What factors go into the decision process to determine safety? If EPA require s an analysis for safer alternatives under RMP, the focus would

n eed to be on safety relative to accidents and incident in the ambient air, as that is the extent of EPA ’ s authority under the Clean Air Act. This is complicated and near ly impossible to import into a regulatory context ; it’s not simply low

- hanging fruit t o enhance safety and security.

 The New Jersey experience highlights the complexities of such a program. Under New Jersey’s Toxic Catastrophe Prevention Act (TCPA), regulated facilities are required to perform an inherently safer technology review. New J ersey uses a non
- traditional definition of inherently safer technology ( IST ) that focuses on strategies already considered by best management practices : OSHA PSM standards and EPA RMP rule. As such, many companies claim to identifyEO 13650 Public Listening Session Page 13

December11, 2013 Orlando, FL or implement IST controls that really aren’t bona

- fide IST measures but rather are measures already identified or implemented under other programs.

 The TCPA program ’s goal is to not specifically require the reporting of risks before and after IST impleme ntation. There is no specific accounting for risk shifted up stream, offsite , or anywhere along the supply chain. There is no way to quantify risk or to define what lesser risk is. There is no way to qualitatively determine if the program has resulted i n any real risk reduction across the board. In light of existing F ederal and industry programs, it is difficult to envision the benefit of adopting this program at the F ederal level.

 Government clearly has a role in addressing security and safety, but t he EO states that its role needs to be coordinated with industry, which has the primary responsibility of ensuring the safety and security of its employees and neighbors. It is possible to reach these safety goals through companies ’ continual devotion to management and control of hazards by adhering to existing regulations and industry best practices. Adopting a safer process does not represent the only way to achieve the desired level of safety.

 We encourage the working group to focus on facilities that may have previously been off the radar and that truly need help with security and safety measures. This is the goal of the EO , which doesn’t necessarily involve developing new regulatory programs that will create additional complexity without providing a ny quantifiable benefit.
Gary Wei ss, State Emergency Response Commission ( SERC ), provided the following comments:

 I am the c hairman of our LEPC and also serve as an adjunct professor at Columbia Southern University, teaching fire and OSHA programs.

 I woul d like to discuss the use of E

- Plan. The SERC supports the use of E

- Plan and has submitted a letter to the working group. It is essential that we find ways to fund it.

 This program is an essential tool for first responders. I’d like to give you two real

- life examples :

o In Miami

- Dade , someone called in an ammonia smell in a community. No facility had reported an emergency. Using E

- Plan, first responders were able to iden tify facilities with ammonia and were able to identify the facility with the issue before it could provide any external notifications

. That is an excellent example of how E

- Plan enhances safety for our community and our emergency responders.

o In particular , regarding h urricanes it’s important to know where facilities exist and the ir onsite quantities of particular chemicals . It can serve as an in valuable resource to first responders.

 E

- Plan can serve as a single repository for everyone. Let’s take a regi onal response example: f irst responders coming into localities from neighboring jurisdi ctions can get information via E

Plan that they would not otherwise have access to.

 Many emergency response vehicles have computers with I nternet access, which would giv e them acces s to E

- Plan while on the road

.
 Funding is needed to keep this product going. It is highly valued by the emergency response community.EO 13650 Public Listening Session Page 14

December11, 2013 Orlando, FL  There was a question asked earlier by someone regarding the training of first responders. Our LEPC receive s funding for training first responders. We use these funds to provid e training , including classes, exercises, and drills, to these individuals.

Laura Prav s, Greenpeace , provided the following comments:

 As a Florida resident, I am alarmed that there are 22 facilities in my S tate that each put more than 100,000 people at risk.

 When I started researching for this hearing, I felt all sorts of emotions : rage, blame, anger, fear. What it really comes down to is not making this about blame or opposition. When we do that, we don’t listen to one another. I want to hear you, and I want you to hear me in return. I want to take this time to see what our common ground is.

 Right now in this room, no matter who you are, you ar e sitting in a dangerous zone of a chlorine storage facility. Brenntag is a potential weapon of mass destruction and a pre
- positioned target for an unprecedented disaster. In the event of an accidental explosion, leak, or intentional terrorist attack, w e are currently inside the risk area, along with 300,000 other people. This would lead to a painful death, with intense burning of our skin and eyes, followed by a choking sensation due to pulmonary edema, ultimately resulting in suffocation.

 If faciliti es like Brenntag would switch to other safer processes, such as replacing chlorine with bleach made onsite with salt and electricity, i t would significantly reduce the threat to our residents. For some reason, this facility and others across the country h aven’t done this. Perhaps this is an issue of cost, miscalculation of the risks, or an over

- focused fear of “ big brother ” telling them how to run their business. It doesn’t ma t ter. This isn’t an issue of blame ; it’s about preventing accidents.

 Small i ncidents happen at chemical facilities every day. There have been hundreds of fatalities at chemical plants in the last decade or so. In this year alone, there have been close to a dozen significant incidents, of which the disaster in West, Texas is well

- known.

 This hearing is about ensuring that this kind of disaster, or something worse like the B hopa l tragedy, cannot happen again. It doesn’t matter whether a company voluntarily uses IST or is forced to institute changes based on regulation. The resu lt is the important thing.

 Decades of industry delay have shown that many companies are not making changes to safer alternatives. This leaves us with little choice but to see the voluntary choice as a stall tactic rather than as proving that they have the community’s welfare in mind.
Michael Witten, Crop Production Service s, Loveland, Colorado , provided the following comments:

 Our organization distr ibutes a large amount of fertilizer.

 The fertilizer industry employs about 250K jobs , with about four recip rocal jobs created for each of those positions.

 I worked as a firefighter for 37 years. I am very knowledgeable about Tier II forms. It would be helpful if we could pare down the Tier II forms to only the pertinent information that first responders need to know: location, chemical, and quantity.EO 13650 Public Listening Session Page 15

December11, 2013 Orlando, FL  The firefighters in West, Texas had the Tier II filings for the facility there. However, it is difficult to know if they understood the information they were given.

 Crop Production Services has started an outrea ch program for emergency responders throughout the country. We are 97 percent complete in having visits from local first responders at al l of our 1,400 f acilities. At these visits, we discussed the makeup of the facility and the chemicals stored within.

 All industries that house hazardous chemicals need to educate first responders about the chemicals that are in use at the facility.

 A clarifying question was asked by Ms. Graydon: In terms of working with first responders, what was the key to success? If we are asking each company to reach out individually, how can we maximize first responders ’ time ?

o Mr. Witten responded : It is doubtful that we could develop a process tha t would be superior to having first responders visit a site in

- person. First responders would need to visit somewhere in the order of 15

– 20 facilities in a year; that does not appear to be an unreasonable demand.
Jason Taylor, Orange County Office of Emer gency Management ( OEM ) , provided the following
comments:

 In the S tate of Florida, we have a program called Hazards Analysis in which local emergency responders evaluate half of all section 302 chemical facilities in their county. In Florida, all 67 counti es participate in this program.

 The Executive order appears to focus on chemical facilities but does not address transportation issues , such as railway, waterway , and highway.

 In Florida, HMEP project funds move from U

. S

. DOT to the States , which filter funding to the LEPCs. Those funds are specifically for transportation

- related items. Previously, there were outreach items for section 302 outreach and chemical facility outreach, but since they don’t have a transportation

- related function, they have be en removed from the list of activities performed by the LEPC.

 In Florida , we have 11 LEPCs , which varies significantly from other S tates . Our program has had regional LEPCs since 1986.

 In some areas of the country , there are councils of governments performing the LEPC functions, which may be an alternative on a national scale.

 Some areas have LEPCs on a smaller level. In Michigan , there are LEPCs for each of the counties and even for some of the municipalities.

 I would like to encourage the EPA to better collaborate with facilities to encourage supplemental and environmental projects. Training funds could go back into local first responders to close the gaps in funding we are seeing throughout the S tate.

 We have not yet seen the transition from MSD S to safety data sheets ( SDS s) or other universal numbering systems in place.

 Why does the EO focus on AN? Obviously, it is because of the incident in West, Texas, but why wouldn’t we consider other more hazardous substances as well ?EO 13650 Public Listening Session Page 16

December11, 2013 Orlando, FL  A c larifying comment was made by Lisa Long: Even though the Executive order speaks directly to ammonium nitrate , we are also considering other chemicals that are similarly hazardous.

 A c larifying comment was made by Commander Calhoun : You made a very good point about the focus of the facility vis

- a
- vis transportation. Can you give me a more specific example of your transportation concerns ?

o Mr. Taylor responded : Specifically, t here is a fuel farm in Port Canaveral for petroleum

based products. Once these come off the ships, t hey are not reported by that facility. They are held for later distribution. This is a holding area for these chemicals in large quantities that could be susceptible to attack or transportation

- related incidents

. Another example would be in ra il yards, where chemicals are kept in large quantities. In some of these instances, models indicate that 60

– 90K people would be affected by an incident t here.
Closing remarks were provided by Lisa Long:

 Thank you all for coming out this morning and speaking with u s.

 The address for the W ebsite is: osha.gov/chemicalexecutiveorder/index.html. We encourage you to visit this site to learn more about our efforts under the EO

. [Lunch Break]
Eric Hamilton, Florida Petroleum Council (a division of the American Petroleum Institute) , provided the following comments:

 When looking a t regulations, we hope that they wi ll be both feasible and enforceable. They should reflect lessons learn ed combined with performance data.

 Regulation should be risk

- based and supported by sound science and data. It should be based upon root cause analysis of inadequate performance to ensure that changes address true regulatory deficiencies. It should not pursue the mythical notion of zero

- risk.

 The current OSHA PS M standard and EPA RMP have worked well to support the process safety , and we believe that is important for the oil and natural gas industry.

 Industry standards play an important role. The American Petroleum Institute ( API ) standards are adopted in S tate regulations over 3,300 time s and at the F ederal level over 350 times. Many times this is because the se standards are approved by the American Standards Institute. When we develop standards, we base them upon data and other technical support information.

 We hold conferences an d publish journals to disseminate best practices to members of industry.

 We recommend sharing best practices to pursue industry implementation of safer practices.

 There are four different categories of risk : i nherent , passive, active, and procedural. We n eed to emphasize mitigat ing risk in every category.

 A c larifying question was asked by Ms. Long: You spoke to how regulations should be based upon lessons learned and performance data. Do you have examples of performance data or know where it is available ?EO 13650 Public Listening Session Page 17

December11, 2013 Orlando, FL o Mr. Hamilton responded : I don’t have that right now, but I can get back to you with that.

We sit on the S tate E mergency R esponse C ommission. There is a lot of sharing of information at that level as well.
Mike Whitten, Crop Production Services , provided the following comments:

 We wanted to share our thoughts on what would improve operational coordination, specifically outreach communication. Many first responders are volunteer organizations that do not have a lot of resources. If our industry partners can work directly with their local first responders, it will give those responders a better understanding of the facility and hazards involved.

 We need additional c oordination between S tate and local agencies. Our organization operates facilities in remote areas. We often see other facilities that may have ammonium nitrate onsite but appear to have poor security. Our organization takes great interest in securing hazardous materials, but others may not. Increased coordination may help to identif y these previously unknown facilities.

 Our organization no longer handle s ammonium nitrate. This d ecision was made in response to the West, Texas incident.

 S maller community fire departments don’t have experience in hazardous materials and may not know wh at to do. We would like to reach out more to local emergency responders to train them and ensure that they are informed , as t heir actions ( or inaction ) could actually worsen a situation.

 Federal and S tate agencies should work together to coordinate insp ections and to cross
reference their databases.

 In the past few years, the EPA has asked us to report non

- hazardous chemicals , such as potash and phosphate

. If that information is then shared with emergency responders, it may confuse them as to which che micals are truly hazardous and which have minimal hazards

– i n the case of potash

.
 Ms. Long asked a clarifying question: You mentioned facilities in remote areas that may have unsecured ammonium nitrate

. Do you have a recommendation on how to identify t hem specifically ?

o Mr. Whitten responded: You may need to reach out to large manufacturers to determine where the product is being distributed.

 Lisa Long asked a clarifying question: You mentioned coordination between agencies for inspections. Do you have any specific ideas on how to best coordinate inspections at the F ederal level?

o Mr. Whitten responded: I’ll give you an example. We may have a Tier II inspection, followed a few weeks later by a DHS inspector , we then may also then see an EPA inspector, an d then an OSHA inspector . By coordinating among agencies, perhaps we can lessen the number of inspections while still achieving the same goals of compliance.
Dwayne Mundy, Director of Public Safety & Regulatory Compliance, North Central Flor id a Regional Planning Council (RPC), provided the following comments:EO 13650 Public Listening Session Page 18

December11, 2013 Orlando, FL  We have found that r egional LEPCs work very well. Our area of Florida covers 7,000 square miles and has nearly 500,000 people. It has major railways and interstate highways.

 When we starte d, we had only one hazmat team. We’ve expanded that to regional hazmat
teams.

 In Florida , there are 11 LEPCs. We have found that by having counties work together, hazmat response is really a regional matter.

 We support the use of E

- Plan for Tier II submi ttals. We input that information into Cameo to complete our hazards analysis.

 M eeting directly with the facilities in our communities is valuable to us

.
 Ammonium nitrate is used in our community, which has a significant amount of agriculture. It is disap pointing that ammonium nitrate is not covered as a Tier II filing; it appears to have a retail exemption. We have attempted to address that lack of data through site visits.

 Lots of facilities sell anhydrous ammonia, which count as section 302 facilit i es and are included in our hazards analysis.

 Florida is trying to expand the way we deal with our hazards analysis. Data is maintained electronically, and we work to ensure that information is available to those who need it.

 Most of the changes to improve safety will need to come from the State or local level.

 We work to ensure that when a n emergency responder and industry worker meet for the first time, it is not during an emergency.

 We conduct a “H azardous Materials Awareness Week” annually, giving people an opportunity to get together. During our seminars, we will typically host topics on hazardous materials in the morning and on hazardous waste in the afternoon.

 Ms. Graydon asked a clarifying question: Is the Hazardous Materials W eek statewide or specific to your regional LEPC?

o Mr. Mundy responded: It is a statewide program , and I would be happy to share some of o ur materials from this past Hazardous Materials Week.

 Ms. Gettle asked a clarifying question: You indicated that changes will come at the local level

. What can the F ederal G overnment do to facilitate this?

o Mr. Munday responded: Funding of the LEPC is the most important. We like the way that the risk management program is operated in Florida. The LEPCs participate with peo ple who conduct the S tate audits. LEPCs are also required to coordinate with the RPC sites.

Paul Wothersoon , Chief of Technological Hazards, State of Florida, Department of Emergency Management, provided the following comments:

 Flor id a is very proactive

. We have over 10,000 facilities with reportable Tier II chemicals. We also operate a risk management program.

 Many of the best practices you are seeking are already in practice in this area.

 Our i nspectors invite local LEPC s , fire depar t m ent s, and DHS CFATS inspectors to participate. They have an opportunity to walk through the facility together. Industry complains about theEO 13650 Public Listening Session Page 19

December11, 2013 Orlando, FL costs involved in hosting inspections from various stakeholders. This approach is intended to address those concerns.

 Our SERC is very active. First responders, LEPC members, and industry representatives comprise its t raining task force

. This task force reviews how people are certified and trained.

 We could improve our coordination with OSHA. Florida is leading the wa y in this area. There is more work to be done, but we are doing more than many S tates.

 E

- Plan is a great program and costs less than $1M to operate annually. That seems like a tremendous value for a very small investment.

 Mr. Heneghan asked a clarifying question: I didn’t hear you discussing transportation. The coordinated inspections you referenced spoke to the idea of working together, but DOT inspectors have a very different perspective. DOT inspectors are focused on aspects of transportation, so the y would be looking at such details as container types

. Would you be open to having DOT inspectors participate along with the others?

o Mr. Wothersoon responded: We would absolutely be interested in having you participate with us.
Closing Comments

– Lisa Long

 Thank you all for coming today and for the comments you shared.

 The W ebsite address is here on the board: osha.gov/chemicalexecutiveorder/index.html

o The site has a few documents, including the OSHA RFI , available. We will continue to post content to this site.
[The group adjourned for an evening dinner break]
Evening session began with a brief introduction by Kate Finne rty, the moderator. A call was made for anyone who would like to come forward to present comments. No speakers presented themselves at the evening session.EO 13650 Public Listening Session Page 20

December11, 2013 Orlando, FL Executive Order 13650

- Listening Session Analysis To Date

Stakeholder Group 12/11/2013 Orlando, FL Total

Stakeholder Emgagement by Group Chemical Producer 6 6 Ag Supply 3 3 Chemical Storage 0 0 State/Local Regulator 4 4 First Responder 3 3 Media 1 1 Owner/Operator 1 1 Industry Association 3 3 Labor Organization 0 0 Federal Representative 7 7 Environment/Community 1 1 Consensus Organization 4 4 Other: Unk 1 1

Citizen 1 1 Education 0 0 Security 0 0 Vendor 0 0 State/Local 4 4 Tribal 0 0 Health/Research 0 0 

## TOTAL 39 39 Conference Call Attend 72 72

Registered 49 49 

## Attended (In

- Person & Conf Call) 111 111

Speakers 31%EO 13650 Public Listening Session Page 21

December11, 2013 Orlando, FL 

# Executive Order 13650 Improving Chemical Facility Safety and Security
December 11, 2013 Listening Session
Hosted by the Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), and the Department of Labor (DoL)
Public Listening Session 9:00 a.m.

– 7:30 p.m. 

## Agenda 8:00 a.m.

– 9:00 a.m. Registration 9:00 a.m.

– 10:20 a.m. Welcome and Overview

Jack Massey, Florida Department of Law Enforcement
Mathy Stanislaus, EPA, Executive Order 13650 Working Group Co

- Chair Assistant Administrator, Office of Solid Waste and Emergency Response
Interagency Representative: Teresa Harrison , Occupational Safety and Health Administration (OSHA) Amy Graydon , Department of Homeland Security (DHS) Commander Scott Calhoun, DHS, United States Coast Guard (USCG) Valentina Close , Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Bryan Rogers , Department of Agriculture (USDA)

10:20 a.m.

– 10:30 a.m. Ground Rules for Public Listening Session

Kate Finnerty , Facilitator

10:30 a.m.

- 4:30 p.m. Comments from Listening Session Participants 6:00 p.m.

– 7:20 p.m. Continuation of Listening Session
7:20 p.m.

– 7:30 p.m. Closing Remarks Mathy Stanislaus, EPA, Executive Order 13650 Working Group Co

- Chair Assistant Administrator, Office of Solid Waste and Emergency Response
7:30 p.m. Adjournment
Persons may also submit written comments to NPPD/ISCD/Mailstop 0610, Department of Homeland Security, 245 Murray Lane, SW, Arlington, VA 20598

- 0610. Comments will also be accepted by email at: EO.Chemical@hq .dhs.gov or through the Federal eRulemaking Portal at http://www.regulations.gov

.