EO 13650 Public Listening Session Page 1

Sacramento, 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 3rd 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 purpose of this listening session is to provide stakeholders with an overview of the progress 

of Executive Order (EO) 13650: Improving Chemical Facility Safety and Security to date and to 

provide an opportunity for the public to provide comments, feedback, and suggestions.

James Wulff, Occupational Health and Safety Administration (OSHA), Department of Labor (DOL):

 The Process Safety Management (PSM) standard was published in 1992, 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. 

 The main objective of the PSM standard is to minimize workers’ exposure to accidentally 

released hazardous chemicals. Despite the benefits of the PSM standard, significant incidents 

still occur:

o In 2004, there was a Formosa Plastics Explosion, 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 impetus for this Executive Order.

 In 2007, OSHA initiated the Petroleum Refinery PSM National Emphasis Program. 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. 
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 OSHA recently published a notice on December 3 to solicit input regarding the PSM standard 

and potential updates to the Explosives 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 information 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 developing 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 include adding 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 safety and security 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.
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 We have a history of working with Federal, State, local, and tribal agencies.

Caitlin Durkovich, Assistant Secretary, Office of Infrastructure Protection, Department of Homeland 

Security: 

 Good morning everyone. I’m delighted to be here in Sacramento today.

 This is our fifth listening session, along with 2 Webinars, 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 

relating 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 see 

here today. I am honored to serve as the co-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 the Chemical Facility 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 with additional 

listening sessions, both in-person and via Webinar. 

 On August 1, 2013, 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.

 We are all committed to not only improving the way facilities and local governments 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 main objectives of the working group 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 improving 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 divide the 

Executive Order 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 responsibility 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 Order, improving 

operational and Federal coordination. These sections are co-chaired by EPA and DHS 

(the Coast Guard).
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 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 pilot program established in EPA’s 

Region II. The pilot is working as a sub-workgroup under the Region II Regional 

Response Team (RRT) and is using the infrastructure created under the 

Emergency Planning and Community Right-to-Know (EPCRA) Act.

 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 to and the content 

of chemical inventory Tier II filings.

 The sub-workgroup has created a matrix to identify current and future activities 

to improve coordination, which will serve as a foundation for the plan.

 Pilot 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 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.

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 nitrate; 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 PSM 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 Executive Order’s final stages. 
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 Today’s listening session continues an important dialogue among communities and stakeholders 

in how we can help make chemical facilities 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 Executive order called for a number of 90-day deliverables that were 

delayed up to 30 days due to the Government shutdown. The working group 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 

Executive order section 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.

 Section 6b speaks to working with ammonium nitrate. 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. 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. We are looking 

to develop that common taxonomy. We have also found that Chemical Abstracts Service (CAS) 

Registry Numbers are not consistent. Additionally, we are looking for ways to uniquely identify 

chemical facilities.

 DHS is also leading a working group to identify 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 the 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 made public last week that outlines the options we are 

considering.

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

practices.

 On August 30, 2013, EPA, OSHA, and ATF issued a chemical advisory that provides information 

on the hazards of AN storage, handling, and management. 
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 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.

 Our 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 these 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 their programs that influence regional chemical safety.

Gina Solomon, Deputy Secretary, Office of Science and Health, Office of Secretary, California EPA:

 I wanted 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 State 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 comments 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 State agencies, Region IX EPA, and six local unified program 

agencies. This encompasses representation at the Federal, State, and local level.

 The options document prepared under the EO has some key components that 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 Change procedures. 

 We are going to amend the PSM and RMP regulations to require a root cause analysis that will 

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 of structured methods in process hazards analysis

 There were three additional areas in the Governor’s report on refinery safety that align with the 

EO options document:

o Involvement of workers in hazard identification
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o Use of leading and lagging indicators

o Use of the safety 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 chemical management program that is generally broader in 

scope and stricter than Federal requirements.

 In California, we have the California Unified Hazardous Waste and Hazardous Materials 

Management Program, . often referred to as the Unified 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 California. 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 

State 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, State agencies, and 

local government regulatory programs to work together in a coordinated fashion. This includes

the following State 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 (CUPAs). They function at the city or county level. 

 The Unified Program Administration Advisory Group consists of U.S. EPA, State agencies, and 

CUPA-selected representatives, which work together to coordinate activities among the 83 

jurisdictions and 4 regions.

 CUPAs are allowed to charge fees to the regulated community, which pay for both the State 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 local CUPA is responsible for maintaining the area emergency response plan.

Mike Wilson, Chief Scientist, California Department of Industrial Relations (DIR):
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 We thank you for your leadership in these efforts and for taking the time to be here today.

 The DIR oversees State programs that are charged with protecting the 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 resources 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 

succeed through interagency collaboration. 

The moderator asked presenters to come forward to provide comments. He reviewed a few of the 

ground rules and explained that the 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 these 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: morning 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 we 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. 
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o A regulatory approach focusing 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 appreciate 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 chain. Chemical 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 safety management regulatory framework based upon the safety case 

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 to uncertainty and additional worker safety concerns.

o A 2002 CSB study 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 Federal agencies to address risks associated with chemical reactions and not to 

simply consider the individual properties of each chemical independently. 

 Christina 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 years old. We devote our time to protecting people from toxic chemicals 

by working with communities, workers, the Government, and the private sector to encourage 

the use of safer practices and materials.

 My handout is a map of California that illustrates counties 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 inherently safer technologies (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 analysis of the RMP 

determined that there are 473 facilities that each more than 100,000 people or more at 

risk from a disaster. 
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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 potential limitations or unintended consequences of voluntary programs. 

Voluntary programs that promote alternatives or best practices such as the ones 

described in the ACC ResponsibleCare® Program do not 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 independent analysis of the 2009 bill H.R. 2868 that passed the House

determined 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 Clean Air Act to 

require safer practices.

Jeffrey Lewis, Quality Management 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 these requirements.

 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 somehow

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.

Randall Sawyer, Chief Environmental Health and Hazardous Materials 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-sized chemical companies and petroleum 

refineries. 

 The California Accidental Release Prevention Program expands upon the Federal 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 Perform root cause analysis as part of a facility incident investigation
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o Expand on when human factors considerations are required

o Require facilities to perform safety culture assessments

o Require management of organizational 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 high-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 recommend that OSHA revise the Accidental Release Prevention Program to:

o Incorporate IST to the greatest extent feasible

o Perform root cause analysis as part of a facility incident investigation

o Require that human factors considerations are included

o Require facilities to perform safety culture assessments

o Require management of organizational change

 We will be submitting written comments with more information.

John Ulrich, 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 smalland medium-sized companies, often unique. The mandate of IST is impossible to implement to 

all facilities.

 I recommend that you look at the programs of national associations, such as the National 

Association of Chemical Distributors, ACC, the Society of Chemical Manufacturers, and affiliates. 

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 pollution 

prevention programs. Our companies often sponsor the programs they support.

 Our members frequently participate directly with their community first responders.

 Is there 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 850,000 members across the Nation, including here in California.
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 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 their

communities.

 IST may take time to implement at all facilities. In the meantime, we should update regulations

and policies.

 It is important that Federal and State 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 Representative, Local 5, United Steelworkers (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 great 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, Executive Director, West County Toxics Coalition, 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.
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 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 fines and penalties. Some of the fines we have seen in the past 

have not provided a strong deterrent.

Brian Langner, Owner and CEO, Alpha Dyno Nobel, provided the following comments:

 I have 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 Rulemaking 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 rail, 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 transportation 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 General Duty 

Clause 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 responders. We believe that local 

emergency responders are best positioned to be the eyes and ears that Federal 

authorities need to identify outlier facilities. 

o We oppose the sharing of security sensitive information contained within the CFATS 

program.
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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 comments:

 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 treatment? 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 monitors air quality one day a week. The day 

of the fire was not one of those days. They do not even check for chemicals like benzene. 

 My daughter has fought Hodgkin’s Lymphoma. She recently had a successful bone marrow 

transplant. Her illness developed before the August 2012 fire.

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

 The current emissions 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 challenges, 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 breathe 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 happen 

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 Hervey, Community for Better Environment, provided the following comments:

 I live in a fenceline community in Richmond, California.
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 I have compassion for some of the smaller 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 

new 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 Interest Research Group (CALPIRG), provided the following 

comments:

 We need to move from a policy of risk 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 regulations 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 

response and litigation. However, these are relatively small compared to how 57 facilities put 

more than 100,000 people at risk. 

 One facility in Los Angeles uses chlorine, 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 chlorine gas 

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 that from 2009 to 2012, there has been an increase of several hundred facilities.

 The EPA has the authority under the General Duty Clause 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 responded: That would be using alternative chemical processes or IST or to 

move people out of hazard zones. I will also submit some written comments.
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Bill Allayaud, Director of Government Affairs, Environmental Working Group, provided the following 

comments: 

 This is my 40th 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 the transportation of oil and shale products. Some of these 

products may be eating through the storage containers of rail cars. There was an accident in 

Canada in July 2013 and more recently (December 2013) in North Dakota. 

 Industry says that hydrologic fracking is inherently risky. Much of this is being done for natural 

gas. Others are doing it to get oil.

Paul Poister, Government Relations Manager, 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 State. 

 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 partners, we continuously train for a variety of contingencies. 

We are proud of our relationships with the fire department, 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 hearts go out to those affected by the incident in West, Texas last April. An important part 

of the Government response to that incident is the listening sessions being held now. 

 Our company is a member of the Fertilizer Institute, Agricultural Retailers Association, 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 and 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 the 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 States. This results in redundant reporting 

requirements. 
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 We would ask you to consider a unified Federal 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 become 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, EnMagine, (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 Nation’s largest hazardous 

materials (hazmat) response conference, which is celebrating its 25th year.

 I have been authorized 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 others 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 responders 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 industry. 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 consolidation and 

harmonization among agencies.

 We have been working with DHS and the U.S. Department of Health & Human Services on their 

human decontamination program. I would recommend that those two be fully integrated.

 Ms. Durkovich asked a clarifying question: You talked about smaller communities having littleto-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 interested in 

speaking to come forward. No speakers came forward. The moderator stated that we would remain in 
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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 accommodate everyone. We are also scheduling evening sessions and 

Webinars to reach a broader audience.

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

Stakeholder Group

1/8/2014 

Sacramento, 

CA

Chemical Producer6

Ag Supply2

Chemical Storage2

State/Local Regulator7

First Responder3

Media1

Owner/Operator2

Industry Association5

Labor Organization2

Federal Representative 11

Environment/Community7

Consensus Organization0

Other: 

Unk2

Citizen0

Education1

Security0

Vendor0

State/Local1

Tribal0

Health/Research0

TOTAL

(Attended In-Person) 52

Conference Call 28

Registered for In-Person 49

Attended (In-

Person & Conf Call) 80

Speakers 40%

Executive Order 13650
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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 3rd 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 and 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.