EO 13650 Public Listening Session Page 1

Sacr amento, CA January 8, 2014 Executive Order 13650 Public Listening Session, Sacramento, CA

Date: January 8, 2014
Location: The Zigguart Building, Auditorium, Room 1

- 301, 707 3 rd Street, West Sacramento, CA 95605 Introduction and Opening Remarks
Jack Eisenhauer , Moderator, introduced the proceedings:

 Welcomed everyone to the listening session and introduced the panel.

 Mentioned future listening sessions.

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

.
 Announcements :
o Please put phones on vibrate

. o Session is being recorded for note

- taking purposes

.
 The p urpose of this listening session is to p rovide stakeholders wi th an overview of the progress of Executive Order (EO) 13650: Improving Chemical Facility Safety and Security to date a nd to provide an opportunity for the public to provide comments, feedback, and suggestions

. James Wulf f , Occupational Health and Safety Administration (OSHA), Department of Labor (DOL) :

 The Process Safety Management (PS M) standard was published in 199 2 , partly in response to several catastrophic incidents that occurred at chemical facilities nationwide

.
 We are all familiar with what happened in Bhopal , India, as well as with the 1989 Philips Petroleum incident in Pasadena, Texas

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 The main objective of the PSM standard is to minimize workers’ exposure to accidentally release d hazardous chemicals

. Despite the ben efits of the PSM standard, significant incidents still occur:

o In 2004, there was a F or mosa Plastics E xplosion , which killed five workers and severely injured others.

o In 2005, 15 workers died and more than 170 others were injured at the BP Refinery in Texas City, Texas. This incident resulted in fines of more than $29M.

o In April 2010, the Tesoro Refinery explosion killed seven workers.

o Recently, the Chevron Refinery incident nearby resulted in significant fines.

o The incident in West, Texas, which was the imp etus for th is Executive O rder

.
 In 2007, OSHA initiated the Petroleum Refinery PSM N ational E mphasis P rogram
. That program lasted a few years, with the purpose of reducing or eliminating the risk of a catastrophic release of chemicals at refineries

. In 2009 , we continued a similar program, which is ongoing, for covered chemical facilities

.EO 13650 Public Listening Session Page 2

Sacr amento, CA January 8, 2014  OSHA recently published a notice on Dec ember 3 to solicit input regarding the PSM standard and potential updates to the E xplosives and Blasting Agents Standard, the Flammable Liquids Standard, and the Spray Finishing Standard. Enrique Manzanilla, Superfund Division Director , Environmental Protection Agency (EPA) :

 EPA ’ s administrator has asked us to focus on seven themes

. Two of those are encompassed in this EO :
o Making a visible difference in communities across the country

o Taking action on toxics and chemical safety

 EPA ’ s role under the EO is to promote facility safety and the protection of human health and the environment in and around communities located near chemical facilities

.
 The Administrator and my colleagues are taking this process very seriously

.
 We are piloting an effort in New York and New Jersey to define high

- risk inspection prioritization among agencies

. This effort will help us determine how to improve i nformation sharing among agencies, as well as to determine methods for improving access to information on chemical inventory filings.

 Here in Region IX , we are actively supporting the California Refinery Task Force’s efforts

.
 EPA has been active in develo ping the ammonium nitrate ( AN ) advisory, which provides information on the safe handling of AN.

 We are working on drafting a Request for Information ( RFI , ) which will solicit input on areas for adjustment in the Risk Management Program ( RMP )

. This may incl ude a dding chemicals, covering additional categories, and strengthening and clarifying existing requirements. Earl (Jack) Whitley, U

. S

. Department of Transportation (DOT) :

 I am with the Pipeline Hazardous Materials Safety Administration (PHMSA)

.
 I am here today to hear any concerns you have regarding the transportation of hazardous materials. Joe Riehl, Special Agent, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) , U

. S

. Department of Justice

 As a member of the Department of Justice, we are the agency responsible for regulating the explosives industry, which we have been doing for several years.

 We are also charged with working with partner agencies in the event of an explosion to determine if the event was criminal or accidental.

 We are here to listen today

. Chemical s afety and s ecurity is an area on which we have focused since 9/11. Michael Day , Commander, Department of Homeland Security (DHS) , United State Coast Guard (USCG):

 As the USCG representative here in the Bay Area, we look forward to your comments today.EO 13650 Public Listening Session Page 3

Sacr amento, CA January 8, 2014  We have a history of working with F ederal, S tate, local , and tribal agencies.
Caitlin Durkovich , Assistant Secretary, Office of Infrastructure Protection, Department of Homeland Security:

 Good morning everyone

. I’m delighted to be her e in Sacramento today.

 This is our fifth listening session , along with 2 W ebinars, that have been held to solicit comments and input from our stakeholder community.

 We’ve had an opportunity to hear from a very diverse set of backgrounds and perspectives
r elating to the EO topics.

 The Administration is committed to improving chemical safety and security

. Your input is valued and is considered critical to this process.

 We have established an interagency working group, which includes all of the agencies you s ee here today

. I am honored to serve as the c o - chair of that working group, along with my colleagues at EPA and OSHA.

 DHS brings a unique security

- centric perspective

. It is responsible for securing facilities with the highest risk via t he Chemical Facilit y Anti

- Terrorism Standards (CFATS) and the Maritime Transportation Security Act (MTSA)

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

 We value your feedback and look forward to continuing the conversation w ith additional listening sessions, both in

- person and via W ebinar.

 On August 1, 2013 , President Obama signed an E xecutive O rder to improve the safety and security of chemical facilities and to reduce the risks of hazardous chemicals to workers and communities.

 We are all committed to not only improving the way facilities and local government s relay and share information, but to also improving the way that we all work with communities, especially underserved communities where access to information is challenged.

 The m ain o bjectives of the w orking g roup include improving 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 impr oving everything from operational coordination and information sharing to modernizing regulations and identifying best practices

.
 To tackle such a broad range of topics, the Interagency Working Group decided to d ivide the Executive O rder work and deliverables into manageable sections corresponding to sections in the EO

.
 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 responsi bility and progress that each group has made.

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

- working groups :
o The first group focuses on Sections 3 and 4 of the Executive O rder , improving operational and Federal coordination. These sections are co

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

Sacr amento, CA January 8, 2014  We are developing a plan to improve the way that we — regulators, emergency

responders, chemical facility owners and operators, and communities

— work together.

 Sections 3 and 4 also address how best to share explosive material storage data and CFATS data.

 An important effort to highlight here is the p ilot p rogram established in EPA’s Region II . The p ilot is working as a sub

- workgroup under the Re gion II Regional Response Team (RRT) and is using the infrastructure created under the Emergency Planning and Community Right

- to

- Know (EPCRA) Act.

 The p ilot is defining high risk and inspection prioritization among the agencies, identifying how best to sha re information and data between agencies and first responders, and determining methods for improving access to and the content of chemical inventory Tier II filings.

 The sub

- workgroup has created a matrix to identify current and future activities to impro ve coordination , which will serve as a foundation for the plan.

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

o The DHS Office of Infrastructure Protection chairs Section 5 , which is examining ways to improve how we collect and disseminate chemical facility information. It is looking at improving information collection and sharing among the various agencies , as well as among S tate 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.

o Section 6, chaired by OSHA , primarily focuses on policy and standards modernization.

 This section is developing proposals to improve the storage, handling, and sale of ammonium nitra te ; is reviewing a list of chemicals to include in the CFATS Chemicals of Interest list ; and is improving the chemical hazards covered by the RMP and the Process Safety Management (PSM) Standard.

 Section 6 also addresses improving existing risk management practices.

 On December 3, 2013, OSHA issued a RFI.

 In the RFI, OSHA seeks input on its Process Safety Management standard, as well as potential updates to its Explosives and Blasting Agents, Flammable Liquids and Spray Finishing standards and changes to P SM enforcement policies.

 The agency also asks for information and data on specific rulemaking and policy options and the workplace hazards they address. OSHA will use this information to determine what actions, if any, it may take

.
 The RFI was posted on December 3 and was published in the Federal Register on Monday, December 9

. The RFI public comment period will last for 90 days

. o Section 7 is also being chaired by the DHS’ s Office of Infrastructure Protection

. Section 7 involves stakeholder outreach and best practices and will address challenges and develop solutions to be implemented in the E xecutive O rder ’s final stages

.EO 13650 Public Listening Session Page 5

Sacr amento, CA January 8, 2014  Today’s listening session continues an important dialogue among communities and stakeholders in how we can help make chemical facili ties and our hometowns safer.

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

 As many of you know, the E xecutive order called for a number of 90

- day deliverables that were delayed up to 30 days due to the G overnment shutdown

. The working group has met its deadline for the first set of deliverables.

 However, some of the 90

- day deliverables were dra ft internal deliberative documents and will not be available for public review

. One document that will be released to the public is under E xecutive order section 6(a): Options for Improved Chemical Facility Safety and Security

. This document is currently being reviewed by the W hite H ouse , and we look forward to your feedback once it is released.

 As I mentioned before, we are holding public listening sessions via W ebinar and across the country to ensure that we hear from communities and stakeholders

. Your t houghts and input are invaluable to our team.

 Section 6 b speaks to working with a mmonium n itrate

. DHS is in the process of developing a final rule ; therefore, DHS participants today are limited in what they can discuss in this area.

 DHS is leading two sub

- working groups within the EO on
. i nformation 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

. We are loo king to develop that common taxonomy

. We have also found that Chemical Abstracts Service ( CAS ) Registry N umbers are not consistent

. Additionally, we are looking for ways to uniquely identify chemical facilities.

 DHS is also leading a working group to ident ify best practices

. We are interested both in knowing where you go to learn about best practices and in hearing about the best practices themselves. Lisa Long, Director, OSHA, DOL:

 OSHA leads t he Section 6 working group
. It is tasked with policy and standards modernization , which encompasses three main tasks:

o Develop a list of options.

o Engage stakeholders for input.

o Write a plan to implement the chosen options.

 We have a document that was m ade public last week that outline s the options we are consid ering.

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

 On August 30 , 2013 , EPA, OSHA , and A TF issued a chemical advisory that provides information on the hazards of AN storage, handling , and manage ment.EO 13650 Public Listening Session Page 6

Sacr amento, CA January 8, 2014  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 future AN

- incidents.

 O ur document presents a number of options , which

. I will review

.
 Ms. Long walked through the options described in the 6a document , which is found at: https://www.osha.gov/chemicalexecutiveorder/Section_6ai_Options_List.html

 We are interested in your feedback concerning the se options. They are only options at this time

. Representatives of the California Environmental Protection Agency (Cal EPA) were present to describe the functions of Cal EPA and the ir programs that influence regional chemical safety.
Gina Solomon, Deputy Secretary, Offic e of Science and Health, Office of Secretary, California EPA :

 I w anted to provide an update on the activities of the interagency refinery task force

. In response to the August 6, 2012 fire at the Richmond refinery, the Governor convened a working group on refinery safety . This working group consisted of 13 S tate agencies and departments and a wide array of stakeholders, including first responders and academic scholars.

 The working group issued a draft report in July

. We have received public comment s and are now positioned to finalize the report later this month.

 The report suggested that California EPA convenes an interagency task force on refinery safety

. That task force has been formed and has now met.

 The task force consists of nine S tate agencies, Regio n IX EPA, and six local unified program agencies

. This encompasses representation at the Federal, State, and l ocal level.

 The options document prepared under the EO has some key components t hat are parallel to those we are considering

. We are working to harmonize the PSM and RMP process in California through rulemaking

. We will consider of human factors in process safety by requiring Management of C hange procedures.

 We are going to amend the PSM and RMP regulations to require a root cause analysis that w ill include worker participation

.
 The Governor ’ s report announced a move to incorporate requirements for inherently safer technology ( IST ) into the PSM and RMP requirements for refineries

. We are now drafting legislation to accomplish this.

 We are also moving to incorporate a few more things into the PSM and RMP that are not mentioned in the options document:

o Periodic safety culture assessments

o Damage and mechanism hazard reviews as a component of mechanical integrity process safety

. o Requiring the use o f structured methods in process hazards analysis

 There were three additional are as in the Governor ’ s report on refinery safety that align with the EO options document:

o I nvolve ment of workers in hazard identificationEO 13650 Public Listening Session Page 7

Sacr amento, CA January 8, 2014

o Use of leading and lagging indicators

o Us e of the s afety case approach Don Johnson, Special Advisor, Office of the Secretary, California Environmental Protection Agency (Cal OSHA) :

 My comments today will briefly describe the California regulatory process.

 California has developed a robust chemic al management program that is generally broader in scope and strict er than F ederal requirements.

 In California , we have the California Unifi ed Hazardous Waste and Hazardous Materials Management P rogram , . o ften referred to as the Unifi ed Hazardous Materials Program or the Unified Program

.
 The Unified Program combines seven separate chemical management programs that in other jurisdictions are normally handled individually

. This program regulates approximately 145 ,000 businesses in Californi a
. We conduct about 60,000 inspections annually

. There are 750

– 800 local government inspectors working on the coordinated effort , with about 100 technical staff at the S tate level to coordinate.

 We have a very close working relationship with EPA Region IX

.
 The Unified Program organization structure is unique in that it uses U

. S

. EPA, S tate agencies, and local government regulatory programs to work together in a coordinated fashion . This includ es the following S tate agencies:
o Cal EPA, Office of the Secretary

o Cal EPA, Department of Toxic Substances Control

o Cal EPA, State Water Resources Control Board

o Governor’s Office of Emergency Services

o State Fire Marshal’s Office

 The Unified Program has created 83 local regulatory programs that are called Certified Unified Program Agencies (CUPA s )

. They function at the c ity or c ounty level

.
 The Unified Program Administration Advisory Group consist s of U

. S

. EPA, State agencies , and CUPA

- selected representatives , which work together to coordinate activities among the 83 jur isdictions and 4 regions.

 CUPAs are allowed to charge fees to the regulated community , which pay for both the S tate and local levels of the program

. This provides for a continuous form of funding to sustain the program.

 The program allows for electronic permitting and information collection.

 The format of our Unified Program would work as a good model for your consideration when thinking about how to address the challenges of the EO

.
 The l ocal CUPA is responsible for maintaining the area emergency response plan. Mike Wilson, Chief Scientist, California Depar t ment of Industrial Relations (DIR):EO 13650 Public Listening Session Page 8

Sacr amento, CA January 8, 2014  We thank you for your leadership in these efforts and for taking the time to be here today.

 The DIR oversees S tate programs that are charged with protecting t he health, safety, and economic security of residents and workers.

 Cal OHSA is part of DIR.

 I would like to make three main points that we think are important for your consideration :
o We have learned that chemical process safety requires dedicated resource s and attention

. o The PSM standard is in need of modernization. The standard is about 20 years old , and there have been significant changes in industry during that time.

o We believe that the kinds of improvements we are working toward will most likely
succe ed through interagency collaboration. The moderator asked presenters to come forward to provide comments

. He review ed a few of the ground rules and explained that t he goal is to give everyone an opportunity to speak and to be respectful of everyone’s time :

 This is a listening session

. The purpose is to hear your comments

. There is no expectation of coming to consensus

. Please respect the options of others.

 We are very interested in specific suggestions , as the se would be the most helpful.

 Please feel free to provide written comments to eo.chemical@hq.dhs.gov

.
 We will be divided into two sessions: m orning and afternoon

.
 Individuals providing comments will be limited to 5 minutes.

 Following any remarks, members of the panel may ask questions to gain additional clarification and understanding.

 After all registered speakers have had an opportunity to present, we will open the floor to anyone who would like to present

. Those additional speakers will also be limited to 5 minutes. Tim Shestek, American Chemistry Council (ACC), provided the following comments:

 Many of the proposed changes identified under the EO may have an impact on industry

. We appreciate the opportunity to provide feedback , and w e will be submitting additional detailed comments.

 We are encouraged to see the working group considering some of the concepts we have recommended , including:

o Opportunities to improve the interaction of existing regulatory programs

o Leveraging industry programs

o Identifying outlier facilities

o Creating better mechanisms for sharing information with communities and first responders

 We do have concerns with some of the options that the working group is considering

.EO 13650 Public Listening Session Page 9

Sacr amento, CA January 8, 2014

o A regulatory approach f ocusing on IST may be counterproductive to the EO’s goal. The current formal regulations today provide strong incentives to adopt IST when feasible

. No single agency or regulatory program can holistically address the risk/safety environment of a given facility , and no single agency can fully app reciate or regulate the entire facility ’s operational risk , the potential impact to supply change, and the impact to the community and surrounding environment.

o Changes in process can have severe and detrimental effects on downstream users in the supply ch ain

. C hemical substitution generally requires that larger quantities are used , thus increasing the transportation, storage , and loading risk

. o ACC has recently submitted formal comments to the Chemical Safety Board (CSB) in response to the Chevron Richmond Refinery Regulatory Report

. We share the CSB ’ s mission in preventing chemical accidents and improving safety practices through root cause investigations

. However, we have several concerns with the CSB recommendation to establish a s afety m anagement r egula tory f ramework based upon the s afety c ase principles

. o ACC believes that its members address the concerns identified in the CSB report through current OSHA and PSM standards

. The report recommends a drastic and unnecessary change that can ultimately lead t o uncertainty and additional worker safety concerns.

o A 2002 CSB s tudy on reactive chemicals concluded that using a list of chemicals is an inadequate approach to covering reactive hazards

. Despite that conclusion, CSB continues to recommend to OSHA and EPA that regulations be modified to cover reactive hazards

. Improving reactive hazards requires collaboration between industry and F ederal agencies to address risks associated with chemical reactions and not to simply consider the individual properties of eac h chemical independently.

 Ch ristina Medina , Center for Environmental Health , gave a handout to the panel and provided the following comments: I will email a copy of the handout I provided to the email address that you provided.

 Our organization is 20 year s old

. We devote our time to protecting people from toxic chemicals by working with communities, workers, the G overnment, and the private sector to encourage the use of safer practices and materials.

 My handout is a map of California that illustrates count ies with the highest poverty rates (in purple)

. There are also dots to illustrate the locations of RMP facilities, schools , and local hospitals

.
 I would like to make the following recommendations for the committee:

o Many facilities have converted to i nherently s afer t echnologies ( IST )

. We know this can yield safer communities

. To spur innovation, we must prioritize that the highest risk facilities convert to IST

. A 2012 Congressional Research Service a nalysis of the RMP determined that there are 473 fa cilities that each more than 100,000 people or more at risk from a disaster

.EO 13650 Public Listening Session Page 10

Sacr amento, CA January 8, 2014

o We need more data and information about the success stories

. Knowing instances where facilities have successfully adopted safer processes or alternative chemicals will encourage other high

- risk facilities to do the same.

o There are p otential limitations or unintended consequences of voluntary programs

. Voluntary p rograms that promote alternatives or best practices such as the ones described in the ACC ResponsibleCare ® Program do n ot promise the use of IST

. Further , these trade associations have lobbied heavily against IST requirements

. o Methods for implementing this option:

 Many facilities have switched to IST at a surprisingly low cost

. According to the Center for American Progress Analysis, 87% of the converted facilities spent $1M or less and continue to save money , particularly from reduced liability costs and reduced costs of regulatory compliance.

 A 2010 ind ependent analysis of the 2009 bill H

. R

. 2868 that passed the H ouse dete rmined that the bill ’s industry requirement to use IST would have created 8,000 new jobs in the chemical industry and water treatment standards.

 DHS ’ s option to leverage industry best practices could be achieved more effectively through the EPA , which has the authority under the C lean A ir A ct to require safer practices

. Jeffrey Lewis , Quality Man a gement Consultant, Safety in Your Hand, Inc., provided the following comments:

 There are so many standards and regulations that it is difficult for small operators to understand how to meet the se requireme nt s.

 Many operators treat the standards as something to simply be met, versus as something to be integrated within their process.

 I would like to suggest that the standards by ISO 9000

- 2015 and API Spec Q1 and Q2 s omehow involve the PSM requirements, so that operators can implement one methodology that will encompass all requirements for security, environmental protection, process safety , and other
concerns.
Randal l Sawy er, Chie f Environmental Health and Hazardous M aterials Officer , Contra Costa Health Services, provided the following comments:

 I am in charge of one of the local CUPAs in Contra Costa County.

 The locality is home to a number of small

- to medium

- size d chemical companies and petroleum refineries

.
 The California Accidental Release Prevention Program expands upon the F ederal PSM and RMP by including additional chemicals and lower chemical thresholds.

 The Industrial Safety Ordinance requires petroleum refineries and chemical facilities to:

o Incorporate IST to the greatest extent feasible

o P erform root cause analysis as part of a facility incident investigationEO 13650 Public Listening Session Page 11

Sacr amento, CA January 8, 2014

o Expand on when human factors considerations are required

o Require facilities to perform safety culture assessments

o Require management of organizatio nal change

 The Industrial Safety Ordinance is being revised to address the Chemical Safety and Hazard Investigation Board’s recommendations

. It will expand current requirements for the use of IST.

 During the 1980s and 1990s, there was an average of one hig h

- severity accident annually

. Since 1999, the year that the Industrial Safety Ordinance was adopted, there has been only one such accident.

 There is strong support from our community to ensure that everything feasible is done to prevent accidents.

 I recomm end that OSHA revise the Accidental Release Prevention Program to :
o Incorporate IST to the greatest extent feasible

o P erform root cause analysis as part of a facility incident investigation

o Require that human factors considerations are included

o Require facil ities to perform safety culture assessments

o Require management of organizational change

 We will be submitting written comments with more information.
John U lrich, Executive Director, Chemical Industry Council of California, provided the following comments:

 I have been in the chemical industry for over 40 years

. I joined the Dow Chemical Company before the days of the EPA

. I’ve seen a lot of changes over that period.

 There is a lot of regulation in California

. In fact, it is difficult to operate a chemical facility in California

.
 My members are not refineries or large bulk commodity chemical companies

. They are small

and medium

- size d companies, often unique

. The mandate of IST is impossible to implement to all facilities.

 I r ecommend that you look at the programs of national associations, such as the National Association of Chemical Distributors, ACC, the Society of Chemical Manufacturers , and a ffiliates

. Their programs are well established and nationally recognized.

 We have tried very hard to further CFATS, to work with the FBI, and to participate with po lluti on prevention programs

. Our companies often sponsor the programs they support.

 Our members frequently participate directly with the ir community first responders.

 Is the re room for improvement? Certainly

. But a complicated command and control structure is not the answer.

Ron Espinoza , United Steelworkers (USW) , provided the following comments:

 I represent 85 0,000 members across the N ation, including here in California

.EO 13650 Public Listening Session Page 12

Sacr amento, CA January 8, 2014  Our union has seen far too many disasters

. The way to prevent these disasters is to move to IST where possible

. USW strongly supports the movement to IST to protect workers and the ir communities

.
 IST may take time to implement at all facilities

. In the mea ntime, we should update regulations and policies.

 It is important that F ederal and S tate agencies work together and with local agencies (and the unions) to ensure that facilities do not fall through the cracks.

 USW supports data sharing among agencies and with workers and emergency responders

.
 We also support the use of joint inspectors in the field.

 We encourage you to continue public input on the EO efforts

. Citizens are around the regulated facilities , and they have a right to know. Mike Smith, Staff Re presentative, Local 5, United Steelwork ers (USW) , provided the following comments:

 USW Local 5 has highly trained workers who operate chemical facilities in this area.

 Our union has seen far too many incidents resulting in injuries and deaths.

 We know a gr eat deal about the facilities in which we work

. We should be included in every conversation about preventing disasters in facilities and preparing for emergency response in the event of an incident.

 The OSHA PSM standard is broken

. The standard focuses on what needs to be done but does not explain how to do it

. USW will be submitting recommendations for updating the PSM standard.

 Voluntary efforts by industry are not enough; we need a modernized standard that will hold industry accountable

. Here are a few examples of where updates to the PSM are needed:

o More meaningful worker participation

o Clearly defined, recognized, and good engineering practices that require workers on the investigation team for an incident or near

- miss
o Require worker and community involvement in response planning, including first responders Dr. Henry Clark , Exec utive Director , West County Toxics Coal ition , provided the following comments:

 Thank you for coming to listen to us today

. My main concern is not only that you listen, but that you implement what is being recommended here

. We have been talking about the problems in our community for more than 30 years , and the problems continue.

 The problems in the chemical industry are disproportionally affecting communities of color

. These communities contain residents who are sometimes living 20

– 25% below the poverty line and who are 70

– 75 % people of color

.
 Executive Order 12898 was signed by President Clinton and was intended to stop the disproportionate impact on communities

. This new Executive Order (13650) is now being discussed

. We want a solution that makes us safer.EO 13650 Public Listening Session Page 13

Sacr amento, CA January 8, 2014  Some companies could use smaller storage tanks to limit the associated risk , or could

. relocate dangerous chemicals to more remote locations

. Chevron did this a number of years ago with the anhydrous ammonia tanks that were located close to a local community.

 I support the recommendations that were provided by Randy Sawyer (Contra Costa Health Services) earlier.

 We would recommend stronger fine s and penalties

. Some of the fines we have seen in the past have not provided a stron g deterrent

. Brian Lang n er, Owner and CEO, Alpha Dyno Nobel , provided the following comments:

 I h ave been an owner and manager of an explosives company since 1983.

 I deal with every one of your agencies

. We have a great working relationship

. I treat you all as educators

. We welcome your inspections , and we are inspected on a regular basis.

 I would like to make several suggestions :
o Issue a Supplemental Notice of Proposed Rul emaking on the Ammonium Nitrate Security Program to include an exception for transportation activities under the authority of TSA and ATF

. Some of the proposed rules would require background checks for everyone who handles AN

. We ship a lot of product by r ail, and the proposed rule as it stands would shut us down.

o We do not believe that the AN Security Program would have prevented the West, Texas disaster

. The proposed rule is designed to address concerns of security, not safety.

o The commerce of AN in the explosives industry is different from AN’s purpose in agriculture

. AN , as used in explosives , is treated as any other chemical

. The DHS chain of custody approach will have a disastrous consequence to our business

. o DHS should provide an exemption for transp ortation activities otherwise covered by ATF and TSA

. DHS should abandon the chain of custody approach and adopt an approach that only focuses on a change in custody.

o When facilities involved with AN are compliant with OSHA standards, we are unaware of any accidental deaths.

o The expansion of RMP to include AN is not warranted

. RMP is a consequence

- based program that lacks OSHA ’s good housekeeping

. AN is also subject to EPA ’ s G eneral D uty C lause to prevent accidental release and to address a release if one does occur. Layering on more regulations is not effective to prevent incidents like the one in West, Texas

. It would be better to ensure that existing regulations are followed and that regulated facilities are informed of the rules.

o We support better coordination with emergency res ponders

. We believe that local emergency responders are best positioned to be the eyes and ears that F ederal authorities need to identify outlier facilities

. o We oppose the sharing of security sensitive information contained within the CFATS program.EO 13650 Public Listening Session Page 14

Sacr amento, CA January 8, 2014

o Local first responders tour our facility every year

. We provide descriptions of all the chemicals and locations to provide a tremendous level of safety. Sylvia Gray

- White, Community for Better Environment , provided the following c omments:

 We need drastic changes in operation, monitoring, and enforcement and stricter emissions standards to protect our health.

 What is the real cost of Chevron to the city of Richmond? Have you heard that more than 15,000 people received adequate tre atment? No

. This is because it is difficult to treat someone when you do not know what chemicals were involved.

 I had to go for treatment 3 days after the fire

. Doctors found that my blood pressure was higher than usual and advised me to take an ibuprofen and a cough drop

. That was it

. They had no idea

— and I had no idea

— what was in my body.

 The Bay Area Air Quality Management District only monitor s air quality one day a week

. The day of the fire was not one of those days

. They do not even check for chemic als like b enzene.

 My daughter has fought Hodgkin’s L ymphoma

. She recently had a succ essful bone marrow transplant

. Her illness developed before the August 2012 f ire.

 I have many friends and relatives who are suffering from the polluted air

.
 The current e missions regulations are not strict enough

. There is no adequate monitoring of the rules that are in place.

 It has been reported that no deaths occurred as a result of the fire

. How can you say that when you do not know which chemicals were emitted and if you are not monitoring them? Richmond residents are getting sick and dying

.
 I learned last year that Chevron has members on the boards of both local hospitals

. They should be working together to reduce the physical challenge s, but that is not the case.

 No one is being testing for heavy metals, including refinery employees

. Even if the pipes inside are up to standard, the employees need to breath e the air at the facility.

 I took a heavy metals hair analysis test last year

. It found that I have lead, mercury, and arsenic in my system.

 I have lost over $100 ,000 by being unable to work

. How much is Chevron costing other Richmond families?

 Heavy metals exposure affects you physically and mentally

. If it happened to me, it can happ en to someone else

. We are entitled to life, liberty, and the pursuit of happiness.

 We have had 25 spare

- the

- air days in the last two months

. Residents are restricted from burning during these days, unless it is their only source of heat, yet there are no restrictions on Chevron.

 [Ms. White provided some handouts to the panel.] Stephanie Her vey, Community for Better Environment, provided the following comments:

 I live in a fenceline community in Richmond, California.EO 13650 Public Listening Session Page 15

Sacr amento, CA January 8, 2014  I have compassion for some of the smalle r businesses that must deal with the complex regulatory environment.

 I am a data analyst and data architect by trade

. A central data warehouse would be helpful

. We could also do some GIS mapping to allow users to drill down into greater detail.

 It is critical that you keep your cross - disciplinary engagement

. .
 I was disappointed to hear the gentleman earlier who said that safer chemicals are sometimes impossible

. There are lots of opportunities for IST , and a greater focus in this area would create
ne w jobs.

 [Ms. Hervey showed the panel a picture of what it looked like outside of her home that morning.]
Austin Price, Field Director, California Public Inter e st Research Group (CALP I R G), provided the following comments:

 We need to move from a policy of ri sk management to a policy of risk prevention

. If voluntary programs were successful, we wouldn’t be having this discussion today.

 IST should be made an integral part of the guidance and regulation s coming from the working group
.
 California is no stranger to chemical accidents

. The 2012 Richmond Fire sent more than 15,000 people to seek medical treatment

. An accidental leak in Carson , California in November sent more than 1,400 people to the hospital. There are significant costs involved for healthcare resp onse and litigation. However, these are r elatively small compared to how 57 facilities put more than 100,000 people at risk

.
 One facility in Los Angeles uses c h lorine, putting more than 5 million residents are at risk

. There is a facility in San Francisco that put 2 million people at risk through the use of hydrofluoric acid

.
 While we may have many dangerous facilities, we also have several great examples of facilities that have switched to safer alternatives. The first Clorox plant to switch away from c h lorine g as was in Fairfield

. Another example is Intel, which switched its hydrofluoric acid to a lower concentration

.
 The working group requested feedback concerning limitations

. The most obvious limitation is that voluntary programs have not worked

. The programs described by industry groups such as the ACC have not reduced the number of facilities in the RMP

. A review of the congressional research shows th at from 2009 to 2012, there has been an increase of several hundred facilities.

 The EPA has the autho rity under the G eneral D uty C lause of the Clean Air Act to take action

.
 I would like to reemphasize that the risk to California residents will not be resolved by voluntary programs alone

. Every day, 100 million people live within the danger zone of one of these chemical facilities.

 A clarifying question was asked by Ms. Durkovich : How do you distinguish between prioritized prevention and risk management?

o Mr. Price r esponded: That would be using alternative chemical processes or IST or to move people out of hazard zones

. I will also submit some written comments.EO 13650 Public Listening Session Page 16

Sacr amento, CA January 8, 2014 Bill Allayaud , Director of Government Affairs , Environmental Working Group, provided the following comments:

 This is my 40 th year of working in regulatory environments.

 The standard approach is for companies to complain about regulation

. They are influenced by their bottom line. The voluntary approach simply does not work quickly enough.

 If you want to see action, you need enforcement

. That is how you make meaningful change.

 The example given by Mr. Price (California Public Interest Research Group) and others has demonstrated that switching to IST can be economically feasible.

 An area of particular concern is t he transportation of oil and shale products

. Some of these products may be eating through th e storage containers of rail cars

. The re was an accident in Canada in July 2013 and more recently (December 2013) in North Dakota.

 Industry says that hydrologic frac k ing is inherently risky

. Much of this is being done for natural gas
. Others are doing it to get oil. Paul Poister, Government R e lations Man a ger, Agrium, provided the following comments:

 We are a provider of all three major crop nutrient products

.
 Here in California, our retail unit operates 50 centers throughout the S tate

.
 We have an ammonia and urea production and storage facility here in Sacramento

.
 We are proud of our facilities’ robust safety program.

 With our regulatory and safety p artners, we continuously train for a variety of contingencies

. We are proud of our relati onships with the f ire d epartment, the Coast Guard, and TSA.

 At our facility here, access is strictly limited

. Visitors are required to be checked in, badged, and accompanied by an employee

. We test our alerting system on a weekly basis.

 Our heart s go out to those affected by the incident in West, Texas last April

. An important part of the G overnment response to that incident is the listening sessions being held now

.
 Our company is a member of the Fertilizer Institute, Ag ricultural Retailers Associ ation, Chemical Industry Council of California , and Western Plant Health Association

. Some of these organizations have already provided written comments

. We associate ourselves with their written submissions.

 Our current regulations need to be revisited an d updated to meet current industry practices. They need to be practical and easy to implement.

 We support the elimination of the fertilizer retail agriculture exemption from the Emergency Planning and Community Right to Know Act

.
 It should be noted that t he West incident did include AN stored onsite, and the facility’s Tier II reports were submitted to local first responders

. Our organization does not handle dry ammonium nitrate.

 The reporting process varies across different S tates

. This results in redunda nt reporting requirements

.EO 13650 Public Listening Session Page 17

Sacr amento, CA January 8, 2014  We would ask you to consider a unified F ederal reporting database , one that could be electronically accessed by LEPCs.

 I would like to also point out a program we are beginning to implement in our industry

. Responsible Ag

. is a stewardship effort to create a communication platform across all of our facilities and customers

. We ask OSHA, EPA, and DHS to review this program and look for an opportunity to be come part of it. [Mid

- Day Break] The moderator resumed the meeting and asked presenters to come forward to provide comments

. He provided a brief review of the ground rules , which were the same as those discussed in the morning.

 Paul Penn, President, En M agine , (gave the panel a document) and provided the following comments: You have a document in front of you that was generated by The Continuing Challenge Hazardous Materials Emergency Response Workshop , the N ation’s largest hazardous materials (hazmat) response conference , which is celebrating its 25 th year.

 I have been authoriz ed to offer this group the use of The Continuing Challenge as a forum to provide feedback; it is here in Sacramento during Labor Day week

. More information can be found at Hazmat.org.

 In some ways, we are a victim of our own success
. The work of EPA and ot hers has resulted in fewer emergency responses

. While this is a success, it has a downside in that skill sets may not be as well

- maintained

. Hazmat skills and equipment are expensive

. Eventually something will go wrong; it is important to ensure that respo nders are ready.

 The notion of “ mutual aid ” is flawed in its name

. In many cases, it is not mutual, but rather one jurisdiction supporting a small locality with little

- to

- no resources of their own.

 Terrorism is not the primary concern of the chemical indus try

. It is a concern, but it is not, and should not be , the primary focus

. The ability to share information changed significantly after 2001 based upon the fear of terrorism.

 Industry would be more receptive to regulation if they were to see a consolidatio n and harmonization among agencies.

 We have been working with DHS and the U.S. Department of Health & Human Services on their human decon tamination program
. I would recommend that those two be fully integrated.

 Ms. Durkovich asked a clarifying question: You talked about s maller communities having little

to

- no hazmat response capabilities

. Is there a database or knowledge for first responders to know where to turn when they need a particular resource?

o Mr. Penn responded: In California, we have a Hazmat team typing program, but that is unique to California

. The database you reference does not exist, at least not in California. The moderator moved the meeting to Open Session and called for anyone who was interes ted in speaking to come forward

. No speakers came forward

. The moderator stated that we would remain inEO 13650 Public Listening Session Page 18

Sacr amento, CA January 8, 2014 open session for the remainder of the afternoon

. He reminded all present that the working group is accepting written comments at eo.chemical@hq.dhs.gov. Closing Remarks:
Caitlin Durkovich provided closing remarks:

 Thank you for taking the time to be here today and to share this valuable feedback with us.

 This has been a gratifying experience to come out to the field and hear from all of you

. This is my third listening session, and I hear new ideas and practices each time

.
 We are trying to accommodat e everyone
. We are also scheduling evening sessions and W ebinars to reach a broader audience.

 I would like to thank the other members of the panel for participating today

.EO 13650 Public Listening Session Page 19

Sacr amento, CA January 8, 2014 Participant Analysis

Stakeholder Group 1/8/2014 Sacramento, CA

Chemical Producer 6 Ag Supply 2 Chemical Storage 2 State/Local Regulator 7 First Responder 3 Media 1 Owner/Operator 2 Industry Association 5 Labor Organization 2 Federal Representative 11 Environment/Community 7 Consensus Organization 0 Other: Unk 2

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

## TOTAL (Attended In

- Person) 

## 52 Conference Call 28 Registered for In

- Person 49 

## Attended (In

- Person & Conf Call) 80
Speakers 40%



# Executive Order 13650EO 13650 Public Listening Session Page 20

Sacr amento, CA January 8, 2014 

## Improving Chemical Facility Safety and Security January 8, 2014 Listening Session Hosted by the Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), and the Department of Labor (DoL) Location: The Zigguart Building, Auditorium, Room 1

- 301, 707 3 rd Street, West Sacramento, CA 95605 Agenda 8:00 a.m.

– 9:00 a.m. Registration 9:00 a.m.

– 10:20 a.m. Welcome, Introductions, and Overview

Jack Eisenhauer , Facilitator
Caitlin Durkovich, DHS, Executive Order 13650 Working Group Co

- Chair Assistant Secretary for Infrastructure Protection Representative, Department of Labor/Occupational Safety a nd Health Administration (OSHA) CDR Michael Day, DHS , United States Coast Guard (USCG) Joe Riehl, SAC/Wesley Beck , Department of Justice/ Bureau of Alcohol, Tobacco, Firearms and Explosives Representative, Department of Agriculture (USDA) Earl (Jack) Whitley , Department of Transportation (DOT) Enrique Manila, Environmental Protection Agency (EPA)

10:20 a.m.

– 10:40 a.m. Overview of Section 6 a

Lisa Long, Director, Office of Engineering Safety, OSHA

10:40 a.m.

– 10:50 a.m. Listening Session Format

Jack Eisenhauer, Facilitator

10:50 a.m.

– 12:00 p.m Comments from Listening Session Participants
12:00 p.m.

– 1:30 p.m. Lunch
1:30 p.m.

– 4:20 p.m. Continuation of Comments from Listening Session Participants
4:20 p.m.

– 4:30 p.m. Closing Remarks

Caitlin Durkovich, DHS, Executive Order 13650 Working Group Co

- Chair Assistant Secretary for Infrastructure Protection
4:30 p.m. Adjournment Persons may also submit written comments to NPPD/ISCD/Mailstop 0610, Department of Homeland Security, 245 Murray Lane, SW, Arlington, VA 20598

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

.