- PRODUCTION OVER PROTECTIONS: A REVIEW OF PROCESS SAFETY MANAGEMENT IN THE OIL AND GAS INDUSTRY

[Senate Hearing 111-1144]
[From the U.S. Government Publishing Office]

S. Hrg. 111-1144

PRODUCTION OVER PROTECTIONS: A REVIEW OF PROCESS SAFETY MANAGEMENT IN
THE OIL AND GAS INDUSTRY

=======================================================================

HEARING

BEFORE THE

SUBCOMMITTEE ON EMPLOYMENT AND
WORKPLACE SAFETY

OF THE

COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS

UNITED STATES SENATE

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

EXAMINING PRODUCTION OVER PROTECTIONS, FOCUSING ON A REVIEW OF PROCESS
SAFETY MANAGEMENT IN THE OIL AND GAS INDUSTRY

__________

JUNE 10, 2010

__________

Printed for the use of the Committee on Health, Education, Labor, and
Pensions

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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

TOM HARKIN, Iowa, Chairman

CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington RICHARD BURR, North Carolina
JACK REED, Rhode Island JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont JOHN McCAIN, Arizona
SHERROD BROWN, Ohio ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon PAT ROBERTS, Kansas
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado

Daniel E. Smith, Staff Director

Pamela Smith, Deputy Staff Director

Frank Macchiarola, Republican Staff Director and Chief Counsel

______

Subcommittee on Employment and Workplace Safety

PATTY MURRAY, Washington, Chairman

CHRISTOPHER J. DODD, Connecticut JOHNNY ISAKSON, Georgia
BARBARA A. MIKULSKI, Maryland JUDD GREGG, New Hampshire
SHERROD BROWN, Ohio RICHARD BURR, North Carolina
KAY R. HAGAN, North Carolina JOHN McCAIN, Arizona
JEFF MERKLEY, Oregon ORRIN G. HATCH, Utah
AL FRANKEN, Minnesota LISA MURKOWSKI, Alaska
MICHAEL F. BENNET, Colorado MICHAEL B. ENZI, Wyoming (ex
TOM HARKIN, Iowa, (ex officio) officio)

Scott Cheney, Staff Director

Edwin Egee, Republican Staff Director

(ii)

C O N T E N T S

__________

STATEMENTS

THURSDAY, JUNE 10, 2010

Page
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
opening statement.............................................. 1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
opening statement.............................................. 4
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado....................................................... 5
Hagan, Hon. Kay R., a U.S. Senator from the State of North
Carolina....................................................... 6
Franken, Al, a U.S. Senator from the State of Minnesota.......... 6
Barab, Jordan, Deputy Assistant Secretary of Labor for
Occupational Safety and Health, Washington, DC................. 7
Prepared statement........................................... 9
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 23
Nibarger, Kim, Health and Safety Specialist, United Steelworkers,
Pittsburgh, PA................................................. 27
Prepared statement........................................... 29
Sawyer, Randall, Director, Hazardous Materials Programs, Contra
Costa County, Martinez, CA..................................... 33
Prepared statement........................................... 34
Drevna, Charles, President, National Petrochemical & Refiners
Association, Washington, DC.................................... 44
Prepared statement........................................... 46

ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
Response to questions of Senator Isakson by Charles T. Drevna 61
American Petroleum Institute, API, letter.................... 63

(iii)

PRODUCTION OVER PROTECTIONS: A REVIEW OF PROCESS SAFETY MANAGEMENT IN
THE OIL AND GAS INDUSTRY

----------

THURSDAY, JUNE 10, 2010

U.S. Senate,
Subcommittee on Employment and Workplace Safety,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m. in
Room SD-430, Dirksen Senate Office Building, Hon. Patricia L.
Murray, Chairman of the subcommittee, presiding.
Present: Senators Murray, Casey, Hagan, Franken, Bennet,
and Isakson.

Opening Statement of Senator Murray

Senator Murray. This subcommittee will come to order.
First of all, I would like to welcome all of our witnesses
and guests to this hearing on keeping workers safe in the oil
and gas industry. Thank you all for coming here today.
Before I begin, I do want to mention a witness who should
be here, but is not. I did invite representatives from BP to be
here today to help us understand what has been going wrong at
their company that has led to so many accidents, and what
lessons they have learned from the disasters at their company.
But, unfortunately, they did refuse to be here. And I just have
to say that, honestly, I find it fairly outrageous that, even
after an accident that killed 11 workers, BP is not putting a
high enough priority on worker safety to send a representative
to a hearing specifically focused on protecting workers in
their industry. So, I want to be clear; I am not going to stop
working to get answers from BP. But, I am extremely
disappointed that they would not be here today.
Like so many Americans, I am horrified and outraged at the
continued devastation that we see in the Gulf Coast. There's
been a lot of talk about the economic and the environmental
impact, and I want to make sure we don't forget about the oil
and gas industry workers, who deserve to be protected: the 11
workers who were killed at the Deepwater Horizon; the 15
workers who died, and more than 170 injured, at the BP Texas
City refinery disaster in 2005; the 7 workers who were killed
at the tragic fire at the Tesoro refinery in my home State, in
Anacortes, WA, earlier this year; and the hundreds more who've
been injured or killed at refineries, on rigs, and in other oil
and gas facilities over the past several years.
These workers and their families deserve to understand what
went wrong. And every single worker deserves to feel confident
that, while they are working hard and doing their jobs, their
employers are doing everything possible to keep them safe.
Let's be clear. Despite what anyone tries to say, this is
not a safe industry. In the last 2 months alone, there have
been 13 fires, 19 deaths, and 25 injuries in the oil and gas
industry. That's just in the last 2 months.
In fact, in 2010 alone, there's been an average of one fire
per week at our refineries. And I should say, those are just
the fires that have been reported. Refineries have no legal
obligation to report every incident.
And on Monday, two more explosions rocked the industry.
Seven crew members in Morgantown, WV, were injured when a
natural gas well exploded while they were drilling through an
abandoned coal mine filled with methane gas. And a natural gas
pipeline in Johnson County, TX, exploded, killing two more
workers. To me, this doesn't just seem like simply a string of
bad luck. It appears to be a disregard for safety regulations
and precautions across the entire industry. And I'm very
concerned that it is the result of oil and gas companies that
put profits and production over workers and safety.
Just this week, a ProPublica article appeared in the
Washington Post that highlighted a report, issued by BP in
2001, reviewing safety concerns at their Prudhoe Bay drilling
fields.
And, without objection, I would like to submit this article
in the Washington Post for the record.

[Editor's Note: Due to the high cost of printing previously published
materials are not reprinted in the hearing record. To obtain the above
referenced article please go to: http://www.washingtonpost.com/wp.]

Senator Murray. In their review of operational integrity
concerns at Greater Prudhoe Bay, BP's own workers noted,

``Preventative maintenance, including scheduled
maintenance required by regulation, has not been
completed as scheduled for all fire and gas
equipment,''

and that,

``Many workers believe their ability to safely shut
down production has been diminished by staff reductions
and the deterioration of the valves used to isolate
production.''

And last, and perhaps most shocking, the report stated,

``Many of the employee concerns discussed in this
report are not new, and have been the subject of
significant study and discussion for a considerable
period.''

This is simply unacceptable. And we've seen other reports
and studies over the years that have laid out extensive
recommendations for improving worker safety.
In response to the Texas City tragedy, BP commissioned an
independent panel to conduct a thorough review of the company's
corporate safety culture, safety management systems, and
corporate safety oversight at five U.S. refineries. The panel
illustrated several clear and specific suggestions to address
the major safety hazards that were found at all five of BP's
U.S. refineries.
In October 2009, OSHA fined BP $87.4 million for the
company's failure to correct potential hazards faced by
employees. That is the largest fine issued in OSHA's history.
And as if things weren't bad enough, I've read reports that
some of the same oil and gas companies that experienced fatal
disasters at their worksites received safety awards within the
same year of their accidents. In fact, the workers at BP Texas
City were celebrating safety accomplishments at the very moment
the explosion happened that killed them.
It was reported that the same day that the Deepwater
Horizon exploded, a group of BP executives were on board to
celebrate the crew's safety achievements. That is truly tragic,
and it is unacceptable, and it needs to change.
To be clear, BP is obviously not the only company with a
poor record of safety. It seems to me that the oil and gas
industry, as a whole, has a hard time learning from their
mistakes and making sure that our workers are protected. Why is
this? We need to ask. Is it the regulations that are already on
the books? Are they being ignored? Or are the regulations
currently in place just not tough enough to do the job? We've
got to figure that out before more lives and their families are
destroyed. And we need to make sure everyone knows that
business as usual in this industry will no longer be tolerated.
As John Bresland, chairman of the Chemical Safety Board,
recently told the Seattle Times, ``If the aviation industry had
the same number of types of incidents as the refinery industry,
I don't think people would be flying too much.'' I have to
agree with Mr. Bresland.
So, today we're going to hear from witnesses who are going
to explain to this subcommittee why these incidents continue to
happen, why there continue to be shortcomings in the oil and
gas industry when it comes to worker protections, and what we
need to do to make sure that this industry improves.
I will have some questions about the need for improved
process safety management, and I'm very interested in hearing
examples of local efforts that have successfully addressed
process safety hazards in the oil and gas industry.
But, before I turn to my Ranking Member, I want to briefly
mention two incidents from Washington State that make this
hearing particularly meaningful to families in my home State.
The first one is recent. I briefly mentioned, earlier, an
explosion at the Tesoro refinery in Anacortes, WA, that killed
seven workers. It devastated a community, and it left a lot of
people still searching for answers. We owe it to those workers,
to their families, and the entire community to make sure that a
tragedy like this never happens again in my State or anywhere
else. Our State has a lot of men and women who go to work every
day in the oil and gas industry, and they deserve to be
protected.
The other incident I want to mention happened a while ago,
but it is still as relevant as ever. In fact, exactly 11 years
ago today, June 10, 1999, a pipeline exploded in Bellingham,
WA, killing three young Washingtonians and devastating the
entire community. Like the workers who lost their lives on the
Deepwater Horizon oil rig and in Anacortes, I know these three
deaths can and should have been prevented.
So, then, with the help of the entire Bellingham community,
I took the lessons we learned and fought hard to pass
legislation in 2002 that has dramatically improved the pipeline
safety system across our entire country.
What happened 11 years ago in Bellingham was a tragedy.
But, it was also a reminder that we cannot just assume that
someone else is taking care of things. We cannot slip back to
where we were before. We have to stay vigilant and continue
working to improve safety wherever we can, which is why I
believe it is so fitting that this hearing on worker safety in
the oil and gas industry is taking place on the 11th
anniversary of that tragedy.
So, once again, I'm looking forward to hearing from our
witnesses about the important issue in front of us.
And before I introduce the panel, I want to first recognize
Senator Isakson for his opening statement.

Statement of Senator Isakson

Senator Isakson. Well, thank you, Madam Chairman. I
appreciate your calling the hearing today.
I regret that it's necessary to call the hearing, and
associate myself with your remarks with regard to the tragedy
and our sympathy for the families and the wish that we all have
to have the accountability be placed wherever it needs to be to
see to it this is minimized or never, ever happens again.
Unfortunately, the Deepwater Horizon explosion, and the
tragic loss of 11 lives and injuries of 25 people, is not the
only petroleum-based disaster we have had. As you mentioned, in
your own home State, the Tesoro fire claimed 7 lives, and the
BP explosion at Texas City operations claimed 15 lives in 2005.
In fact, we have a death rate of 3.7 per 100,000 workers
nationwide; and many workers in very dangerous professions.
But, unfortunately, in oil and gas exploration, it's 74.8
deaths per 100,000, or 20 times as many. That means it's
important for us to focus on those things that we can do to
help ensure that we have redundant systems of security on all
operations to minimize the occurrence of such an explosion.
I have supported offshore drilling, and continue to do so.
I don't want this to be what Three Mile Island was to nuclear
energy. I don't want this to become the same for petroleum
energy. But, that does not mean we should tolerate or accept a
loss of life or less than the maximum amount of security
necessary to ensure and prevent those from happening again.
I look forward to working with OSHA, and I hope OSHA will
be sure to keep the families informed as the progress of
information comes forth from the investigations that will
follow on the Gulf Coast disaster.
I learned from the sugar refinery in Georgia, at Port
Wentworth, that happened 2 years ago, how critical it is for
these families to know exactly what the process of the
investigation is, and exactly what OSHA may find and the
Chemical Safety Board may find.
I encourage our witnesses and the Administrator, who, I
understand today is in the Gulf, working with employees of
OSHA, to see to it we do everything to find out what went
wrong. But, I encourage that information to be available as
soon as possible to those who lost loved ones in this tragic
injury.
Once again, I appreciate very much the Chairman calling
this hearing.
I look forward to hearing the testimony of our guests
today.
Thank you.
Senator Murray. Thank you very much, Senator Isakson.
Senator Bennet.

Statement of Senator Bennet

Senator Bennet. Thank you, Madam Chairman. And thank you
for holding this hearing.
The issue of worker safety and preventing tragedies on the
job is at the forefront of all of our minds after the recent
Gulf and coal mine tragedies. I will say it's on the forefront
of my mind because last night I bumped into the spouses of some
of the people that had been on the rig in Florida, who already
are here, advocating on behalf of these safety issues. I think
it's just extraordinary. They said to me that, whatever we do,
we shouldn't forget the people that were killed in this
explosion. It was a painful discussion for them to be having.
And I appreciate the fact that they're already here, making
sure that we're informed about this work.
The explosion on the Deepwater Horizon rig in the Gulf on
April 20 killed 11 workers and injured 17. Two days after the
explosion, the rig sank. This tragedy for the families of the
victims became the largest environmental disaster in our
Nation's history. The oil leak remains uncontained and has cost
us innocent human life, crushing economic consequences, and
unprecedented environmental damage to one of America's most
precious and defining ecosystems.
The dangerous circumstances that led to this explosion put
workers' lives at risk. And this is simply unacceptable.
I've also been deeply troubled by news reports that corners
were cut in the drilling operations leading up to the April 20
blast. Allegations from recent interviews with Transocean
employees, the owners of the destroyed rig, suggest the
stifling of safety concerns of workers.
I hope today's discussion gauges whether such practices are
commonplace, and what corrective protections Congress should
consider. This tragedy is a stark reminder that energy
development, without proper safety and environmental
precautions, can be a very dangerous business.
To be sure, traditional resources provide an important
contribution to our Nation's energy portfolio, as they do in my
State. However, the tragedy unfolding in the Gulf should remind
us that oil and gas development that comes at the expense of
American lives is not drilling that I, or anyone on this
committee or in this Congress, should support.
Madam Chairman, thank you for holding this hearing.
Senator Murray. Thanks very much, Senator Bennet.
Senator Hagan.

Statement of Senator Hagan

Senator Hagan. Thank you, Madam Chairman. And thank you for
holding this very important hearing.
And I want to thank all of the witnesses who are here today
to testify.
In light of recent events, it is clear that we need to
address and reform workplace safety management in the oil and
gas industry.
This week, the Washington Post reported on years of
repeated problems and violations by BP. In 2001, a report found
that equipment needed for emergency valve shutdown and gas and
fire detectors did not function properly, and were neglected.
In 2004, another report found that BP was cutting corners to
save money by using aging and corroded equipment. In 2006, a BP
employee reported an unsafe work environment, and the employee
was subsequently terminated. In 2008, a portion of a gas line
blew apart after concerns were raised about segments of the gas
line system. Now we learn that the gas alarms and other shutoff
systems that could have cut off power to the Deepwater Horizon
failed.
These are just a few examples of BP's reported problems and
safety violations. I think that one of the most important
points that should be made here today is that these lives that
were lost--and my thoughts and prayers certainly go out to the
families of those 11 men who died--but, their lives were lost,
and the environmental devastation--were perhaps preventable.
I look forward to learning more from our witnesses about
enhanced safety measures to prevent workplace injuries,
illnesses, and certainly deaths. We need to do everything we
can to prevent this kind of disaster from ever happening again.
And I look forward to hearing from our witnesses about this
topic.
Senator Murray. Thank you very much.
Senator Franken, do you care to make an opening remark?

Statement of Senator Franken

Senator Franken. Thank you, Madam Chairman. And thank you
for holding this important hearing.
I hope that today's hearing can serve as a real crossroads
for the oil and gas industry. I hope that we can inspire real
change in their approach to workplace safety, inspire them to
finally start making human life paramount, and explore ways the
Senate can more effectively incentivize better compliance.
Minnesota has about 1,500 workers in petroleum refineries
and on pipelines. These jobs come with serious hazards. Three
workers have lost their lives in recent years, and many more
have suffered grave injuries. Each of these instances is a
tragedy, in large part because they were preventable.
Workplaces in the United States of America in 2010 should
not be inherently dangerous. We should be able to offer each
and every American a safe workplace to work hard and earn a
living. The recent accidents in Washington and in the Gulf have
caused both grief and outrage across the country. It was
especially frustrating when we later learned that BP has a long
and offensive list of egregious violations.
Why were they permitted to continue business as usual?
Where did they fall short? And where did we, as a government,
fall short? I hope that we'll be able to tackle some of these
questions today.
I want to thank all of today's witnesses for being here.
And again, I want to thank you, Madam Chairman, for holding
this very important hearing.
Senator Murray. Thank you, to all the Senators.
We're going to turn to our witnesses. But, again, I do want
the committee members to know that the committee did invite BP
to participate. They did decline. I find that very regrettable.
I think it is important that we hear from them. We will
continue to pursue that, but I hope it is not a comment on how
serious they take the issue of workplace safety, by declining
to be here.
With that, I want to introduce our first panel. And joining
us today is Deputy Assistant Secretary of Labor for
Occupational Safety and Health, Mr. Jordan Barab.
And if you could please give us your opening testimony. And
your full statement will be submitted for the record.

STATEMENT OF JORDAN BARAB, DEPUTY ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, DC

Mr. Barab. Thank you, Senator.
Chairman Murray, Ranking Member Isakson, and members of the
subcommittee, I want to thank you for inviting me here this
morning
Assistant Secretary David Michaels sends his regrets, but
Secretary Solis asked him to accompany her down to the Gulf to
investigate worker safety and health concerns down there with
the cleanup workers.
An April 20 explosion of the Deepwater Horizon offshore oil
drilling platform killed 11 workers and injured 17 others. This
disaster occurred on the heels of a recent explosion at the
Tesoro refinery that left seven more workers dead, and the 2005
fire and explosion at BP's Texas City refinery that killed 15
workers and injured more than 170.
In the past 4 months alone, at least 58 workers have died
from explosions, fires, and collapses at refineries, coal
mines, and oil refinery rigs, as well as a natural-gas-fired
explosion at a construction site in Connecticut. Obviously, the
status quo is not working.
Secretary Hilda Solis's vision of the Department of Labor
is: good jobs for everyone. Clearly, good jobs are safe jobs,
and we must do more to ensure that all of our Nation's workers,
including those in the energy industries, can go home safely
when their workday is done.
In 2007, OSHA initiated a National Emphasis Program, with
the goal of inspecting almost all of the Nation's oil
refineries. We adopted the saturation program, because
conventional methods of assessing workplace safety, such as
injury and illness rates, were not adequate indicators of the
risk of fires, explosions, and other rare but catastrophic
accidents, nor do they account for the fact that in many
refineries much of the most dangerous work is contracted out,
and injuries and fatalities among the contract workers do not
show up on the refineries' operators' rates.
The results of the NEP are far more deeply troubling. Not
only are we finding a significant lack of compliance during our
inspections, but, time and again, our inspectors are finding
the same violations in multiple refineries, including those
with common ownership, and sometimes even the same refinery.
These and other incidents involving close calls, serious
injuries, and fatalities are a clear indication that essential
safety lessons are not being learned. For example, because BP
Texas City had failed to abate many of the problems that caused
the explosion that killed 15 workers, late last year OSHA
proposed additional penalties of $87 million on that refinery.
Only a few months after that, OSHA found similar violations at
a BP Husky refinery in Toledo, OH, for which we proposed $3
million in penalties.
The failure to learn from earlier mishaps has exacted an
alarming toll of human lives and suffering. Refineries,
chemical plants, and other facilities that routinely handle
large quantities of highly hazardous chemicals are not like
conventional workplaces. The consequences of a single system
failure anywhere in the facility can be catastrophic.
For that reason, OSHA issued its Process Safety Management
standard nearly 20 years ago. That standard, embodying a
comprehensive, systematic management approach to process
safety, was one of OSHA's earliest attempts to create the kind
of plan/prevent/protect regimen the Department is now working
on to implement in a much broader way.
That standard, along with others, requires employers to
compile process safety information and make hazard information
and training available to employees and contractors, to develop
and communicate written process hazard analyses that identify
potential system failures, and to address and remediate risks
identified by process hazard analyses in routine inspections or
significant incidents.
Yet, OSHA inspectors are still finding the same problems in
too many facilities. Clearly, much more work has to be done to
ensure an effective chemical process safety. OSHA's identified
three important concepts that guide that work:

No. 1, effective process safety management systems are
critical for success in preventing catastrophic events. This
means establishing a set of practices that define the
organizational culture of these companies. It's also vitally
important that workers can feel that they can report safety and
health concerns without repercussion.
No. 2, the oil and gas industry must learn from its
mistakes. Almost all of the recent catastrophic incidents in
refineries were repeats of earlier mistakes, from which lessons
could have been learned.
No. 3, conventional injury and illness rates are not
adequate indicators of the risk of fires, explosions, or other
catastrophic events, and companies need to develop better
indicators to assess the risks in their workplaces.

We have made it very clear to the petroleum refinery
industry that we are sick and tired of hearing them brag about
their excellent safety records while children are burying their
fathers and mothers.
Moving forward, OSHA will continue to promote a strong
enforcement presence, along with concerted effort to work with
industry, labor, and others. We'll also continue to collaborate
with other government agencies to address worker safety and
health problems in this industry.
Finally, we encourage Congress to pass the Protecting
America's Workers Act, which would significantly improve OSHA's
ability to protect workers, particularly those in the oil and
gas industry.
In closing, I'd like to express my condolences to the
family members whose loved ones have been killed on the job,
especially to the 11 workers killed in the Deepwater Horizon
explosion. I want to assure you that OSHA is actively
cooperating with the Unified Command to help identify the
hazards that oil spill workers are facing.
Chair Murray, I want to thank you again, for this
opportunity to testify today. And I want to applaud you for
your advocacy for America's oil and gas industry workers. OSHA
is committed to addressing the problem so that more workers do
not continue to die in preventable incidents.
Thank you.
[The prepared statement of Mr. Barab follows:]

Prepared Statement of Jordan Barab

Chair Murray, Ranking Member Isakson, and members of the
subcommittee, thank you for inviting me to join you this morning for
this necessary conversation about worker safety in our Nation's energy
production industries. This issue has most recently been brought to the
public's attention in the most tragic way possible, with deaths of 11
workers, and injuries to 17 others as the result of the April 20th
explosion on the Deepwater Horizon offshore oil drilling platform. The
Deepwater Horizon disaster occurred even as OSHA continues to deal with
the ramifications of the 2005 fire and explosion at BP's Texas City
refinery that killed 15 workers and injured more than 170 others, and
to help our Washington State Plan partners investigate the April
explosion at a Tesoro refinery that left 7 more workers dead.
What have we learned from these tragic events? Certainly we have
learned that in our Nation's energy producing industry, the status quo
is not working. In the past 4 months alone, at least 58 workers have
died in explosions, fires and collapses at refineries, coal mines, an
oil drilling rig, and a natural-gas-fired power plant construction
site. Not all of these tragedies are within OSHA's jurisdiction; the
Deepwater Horizon was an offshore drilling facility, technically a
``vessel'' not subject to OSHA requirements, while mine safety is
within the purview of OSHA's sister agency, the Mine Safety and Health
Administration (MSHA). Nevertheless, the toll of worker deaths and
injuries on the job is sounding an alarm about a major problem
throughout the energy industries--a problem that OSHA must help
address.
Secretary Hilda Solis' vision for the Department of Labor is ``good
jobs for everyone.'' Good jobs are safe jobs and we must do more to
ensure that all of our Nation's workers, including those in the energy
industries can go home safely when their work is done.
osha's experience with refineries illustrates widespread problems
In the wake of the Texas City explosion, OSHA initiated a National
Emphasis Program (NEP) with the goal of inspecting the process safety
management programs of almost all of the Nation's oil refineries. We
adopted this saturation program partly because conventional methods of
assessing workplace safety, such as injury and illness rates, are not
adequate indicators of the risk of fires, explosions, or other
catastrophic accidents, nor do they account for the fact that at many
refineries, much of the most dangerous work is contracted out and
injuries to the contract workers do not show up in the refinery
operators' injury rates.
I am sorry to report that the results of this NEP are deeply
troubling. Not only are we finding a significant lack of compliance
during our inspections, but time and again, our inspectors are finding
the same violations in multiple refineries, including those with common
ownership, and sometimes even in different units in the same refinery.
This is a clear indication that essential safety lessons are not being
communicated within the industry, and often not even within a single
corporation or facility. The old adage that those who do not learn from
the past are doomed to repeat it is as true in the refinery industry as
it is elsewhere. So we are particularly disturbed to find even
refineries that have already suffered serious incidents or received
major OSHA citations making the same mistakes again.
For example, because BP Texas City had failed to abate many of the
problems that it agreed to address after 15 workers were killed in the
2005 explosion, and also failed to address a number of related hazards,
late last year OSHA proposed additional penalties of $87 million at
that refinery. Only a few months after that, OSHA found similar
violations at the BP-Husky refinery in Toledo, OH, for which we
proposed an additional $3 million in penalties for egregious willful
violations. That refinery had also been inspected a few years earlier,
and numerous violations identified. Although BP fixed the specific
violations at the Toledo facility that OSHA had identified in the first
inspection, we found the exact same problems in other units in the
plant.
This failure to learn from earlier mishaps has exacted an alarming
toll in human lives and suffering. In the last 5 years alone, OSHA has
counted over 20 serious incidents, many resulting in deaths and
injuries in refineries across the country. The Tesoro Anacortes
explosion in Washington State that killed seven workers last April was
one of these.
What do all of these incidents have in common? None resulted from
unique technical causes. Each one repeated a lesson that should already
have been learned by the industry. For example, last year, OSHA
completed an investigation of a naphtha piping failure and release at
the Delek Refinery in Tyler, TX, in which the resulting explosion and
fire seriously injured three workers and killed two other workers. One
of these two workers was killed in the explosion, while the other
struggled for 13 days in the hospital before dying from severe burns.
But the saddest part of this story is that the naphtha pipe that
exploded had already ruptured once before within the past few years.
This cycle of workers being hurt or killed because their employers
failed to implement well-known safety measures points out major
deficiencies in chemical process safety management in the Nation's
refineries and, quite possibly, to systemic safety and health problems
in the entire petrochemical industry.

CHEMICAL PROCESS SAFETY MANAGEMENT

Refineries, chemical plants, and other facilities that routinely
handle large quantities of highly hazardous chemicals are not like
conventional workplaces; the consequences of a single system failure
anywhere in the system can be catastrophic. Safety professionals have
long been aware that reliance on a safety approach that only addresses
problems after they manifest themselves as obvious hazards is wholly
inadequate to ensure safety in such workplaces.
For that reason, OSHA, in the wake of a disastrous chemical release
in Bhopal, India and several other significant chemical accidents,
issued its Process Safety Management of Highly Hazardous Chemicals
standard nearly 20 years ago. That standard, embodying a comprehensive,
systematic management approach to process safety, was one of OSHA's
earliest attempts to create the kind of Plan/Prevent/Protect regimen
that the Department is now working to implement in a much broader way.
As an early effort, the standard has many strengths, but it is far from
perfect. As I will describe below, we are seeing similar violations in
too many of the refineries we inspect.
The standard, among other things, requires employers to compile
process safety information and make hazard information and training
available to employees and contractors; to develop and communicate
written process hazard analyses (PHAs) that identify potential system
failures; and to address and remediate risks identified by PHAs as well
as risks identified in other ways, such as routine inspections or
investigation of significant incidents. Employers must take extra steps
to maintain the mechanical integrity of critical process components
such as pressure vessels and relief systems. It is a key process safety
management requirement that employers must timely address and resolve
all identified safety issues, and must communicate the resulting safety
information and recommendations to all affected personnel, which
includes management, employees and contractors.
Consistently throughout the course of the Refinery NEP, we have
found that more than 70 percent of the violations we are finding
involve failures to comply with the same four essential requirements:

Process Safety Information: Frequent process safety information
violations include failure to document compliance with Recognized and
Generally Accepted Good Engineering Practices, (or RAGAGEP, which
consists primarily of industry technical guidance on safe engineering,
operating, or maintenance activities); failure to keep process safety
information up to date; and failure to document the design of emergency
pressure relief systems.
Process Hazards Analysis: We are finding many failures to conduct
complete process hazards analyses. Often, there are significant
shortcomings in attention to human factors and facility siting, and in
many cases employers have failed to address Process Hazard Analysis
(PHA) findings and recommendations in a timely manner, or, even to
address them at all.
Operating Procedures: Operating procedures citations are for
failure to establish and follow procedures for key operating phases,
such as start-ups and emergency shutdowns, and for using inaccurate or
out-of-date procedures.
Mechanical Integrity: This is a particular concern given the aging
of refineries in the United States. Violations found by OSHA typically
include failure to perform inspections and tests, and failure to
correct deficiencies in a timely manner. In the Delek Refinery case
mentioned above, for example, OSHA discovered multiple substandard
pipes being operated, and the naphtha pipe whose explosion killed two
workers and hospitalized three others had already ruptured once within
the past few years.
I have been deeply frustrated by these results. Over a year ago, we
sent a letter to every petroleum refinery manager in the country,
informing them of these frequently cited hazards. Yet, a year later,
our inspectors are still finding the same problems in too many
facilities. Clearly, much more work must be done to ensure effective
chemical process safety. OSHA has identified three important concepts
to guide that work.

Concept Number One: Effective process safety management systems and
workplace safety culture are critical for success in preventing
catastrophic events.

In addition to effective process safety management systems,
organizational culture is also a critical component to preventing
workplace injuries, illnesses, and deaths. To paraphrase Professor
Andrew Hopkins of the Australian National University and author of
``Failure to Learn: The BP Texas City Refinery Disaster'', workplace
culture is not just an educational program that gets everyone to be
more risk aware and think ``safety first.'' It means establishing a set
of practices that define the organization and influence the individuals
who make up the organization. It's not how people think, it's what
companies do.
And it may seem obvious, but it bears emphasizing: Organizational
safety culture must start at the top. It is vitally important for
corporate leadership to create an environment within the workplace
where workers feel they can report safety and health concerns without
repercussions. Since OSHA inspectors cannot visit more than a fraction
of the Nation's workplaces, we rely on the eyes and ears of workers to
help identify workplace hazards. To this end, OSHA must protect whistle
blowers from retaliation or discrimination. The need for effective
whistle blower protection is especially important in process safety
management, because PSM systems rely upon effective communication of
hazard information to and from workers involved in these hazardous
operations. We applaud the subcommittee's work on the Protecting
America's Workers Act to strengthen and expand protections for worker
voice in the workplace.

Concept Number Two: The oil and gas industry must learn from its
mistakes.

As discussed earlier, inspections under OSHA's Refinery NEP have
found that over 70 percent of violations are of the same four PSM
standard provisions. Almost all of the catastrophic incidents that have
killed so many workers were caused by failures that industry executives
and facility managers knew how to prevent. They were repeats of earlier
mishaps, from which lessons should have been learned.
Industry must do a better job of institutionalizing systems for
learning from mistakes, so it does not continue to repeat the same
mistakes at the expense of workers' lives. Reform in the management
systems of companies that own, operate, or provide services to
petrochemical operations is needed, and is needed now.

Concept Number Three: Conventional injury and illness rates are not
adequate indicators of the risk of fires, explosions, or other
catastrophic accidents, and companies need to develop better leading
indicators to assess risks in their workplaces.

To ensure strong PSM systems, we need to do a better job of
identifying useful leading indicators of potential catastrophic
hazards. The warning that ``past performance is no guarantee of future
success'' applies with particular force to the low-frequency, high-
impact events that process safety programs are intended to guard
against.
One of the most important challenges in trying to measure
performance is determining how and what we measure. Companies have good
tools for measuring and managing personal, or ``hard hat'' safety, and
the refining and chemical sectors have generally done well in this
area. Standard, OSHA-mandated injury and illness recording on the OSHA
300 log measures conventional hazards such as, for example, those from
falls, broken bones and amputations, and yields rates for mishaps
resulting in days away from work, restricted work or job transfer (the
``DART rate''). Unfortunately, as we have also discovered, having good
numbers on the OSHA 300 injury logs does not correlate with having an
effective chemical process safety program. The classic example of this
is BP-Texas City, which had very good injury and illness numbers for
its own employees prior to the 2005 explosion. That tragedy, of course,
revealed serious problems with process safety and workplace culture at
the facility. Focusing on low DART rates alone will not protect workers
or employers from disaster.
Please do not misunderstand me; we need to keep reporting and
tracking the illness and injury numbers--DART rates are useful--but we
must not let those numbers lull us into a false sense of security.
Looking only at these numbers does not warn us about pending doom from
cutting corners on process safety. And to the extent we continue to
factor DART rates into our targeting mechanism, we need to make sure
that they are accurate. That is why we are paying special attention to
incentive and discipline programs that discourage workers from
reporting injuries and illnesses.

CONCLUSION

So where do we go from here? How do we ensure that safety
conditions in the Nation's refineries improve? OSHA will continue its
efforts to intervene on behalf of workers in the Nation's refinery and
petrochemicals industries. These efforts will include both a strong and
credible enforcement presence, and a concerted effort to enlist the
cooperation of industry, labor, and other stakeholders. This
cooperation is crucial to maximizing our impact because OSHA cannot
inspect every refinery every year.
You can also expect to see OSHA collaborating more with the
National Institute for Occupational Safety and Health (NIOSH),
Environmental Protection Agency, and other agencies to address the
worker health and safety problems in the refinery and petrochemical
industry--and in other industries as well. Together, we can develop a
more effective system for targeting problem hazards and problem
worksites, and addressing the problems that we have identified. I also
met recently with the National Petrochemical and Refiners Association
(NPRA), the American Petroleum Institute (API), and the United
Steelworkers to reemphasize OSHA's concerns. And, in connection with
hazards to which workers outside our jurisdiction are exposed, OSHA is
actively collaborating with other agencies to assist in promoting
worker safety.
Finally, we need to pass the Protecting America's Workers Act
(PAWA), which would significantly increase OSHA's ability to protect
workers, and specifically workers in refineries and chemical plants.
The Act would make meaningful and substantial changes to the
Occupational Safety and Health Act that would increase OSHA's civil and
criminal penalties for safety and health violations, making us much
more able to issue significant and meaningful penalties to large oil
companies before a disaster occurs.
And because safe process safety depends heavily on lessons learned
from close calls and near misses, workers need to feel that they are
protected when reporting these events and exercising other health and
safety rights. The enhanced whistle blower protections that are
included in PAWA would go far toward ensuring that workers are
protected for speaking out. Another way PAWA could strengthen workers'
rights would be to clarify that the whistle blower provisions of the
Occupational Safety and Health Act, contained in section 11(c),
prohibit retaliation for protected activity in connection with
occupational safety and health hazards, similar to those aboard the
Deepwater Horizon, that are regulated by other Federal agencies.
Giving OSHA the ability to require abatement of hazardous
conditions before contests are decided would also significantly enhance
the safety of refineries. Ultimately, stronger OSHA enforcement and a
modern Occupational Safety and Health Act will save lives.
Chair Murray, thank you again for the opportunity to testify today.
I applaud your efforts to shed light on the safety and health crisis in
America's oil and gas industry. OSHA is committed to addressing this
problem so that more workers do not needlessly die. As stated earlier,
we also support Congress passing the Protecting America's Workers Act
to give OSHA the tools needed to improve and expand its PSM enforcement
and more effectively deter safety and health violations.
In closing, I would also like to express my condolences to all the
friends and family members whose loved ones have been killed on the
job, especially to those of the 11 workers killed in the Deepwater
Horizon explosion. While OSHA's coverage of safety conditions on
offshore oil platforms is limited, we are nevertheless very concerned
about the hazards that these workers face. We are also actively
collaborating with the Unified Command to help identify the hazards
that oil spill cleanup workers are facing, and to share our expertise
on how to protect those workers. I am happy to answer your questions.

Senator Murray. Thank you very much for your testimony.
Let me start by asking about these large, multisite
employers like BP. What can OSHA do right now to make sure that
executives and managers fix those serious safety violations
company-wide, especially after OSHA finds those violations at
one location?
Mr. Barab. We have a variety of strategies we're pursuing.
One is, we are--not just for refineries, but for all companies,
especially those with multiple facilities--we've developed a
new program, our Severe Violators Enforcement Program, where
we're looking at all the different facilities that belong to a
company where problems have been identified or workers have
died or been seriously injured.
In terms of the refinery industry, we are--as I said, we
initiated a National Emphasis Program, where we're literally
inspecting almost every refinery in the country, including all
of BP's, both within our jurisdiction and--the State plans,
such as Washington, are also inspecting BP's facilities in
their States. Unfortunately, as I mentioned, we're finding
similar problems in other BP facilities.
Senator Murray. What are some of the limitations you face
in dealing with corporate-wide problems?
Mr. Barab. We've had some problems, which we're trying to
deal with, where we have corporations in--for example, under
Federal jurisdiction and similar--and branches of that same
corporation among the State-plan States. For example, we
can't--if a State plan finds a similar violation in their State
that we found in the Federal State, they can't call that a
repeat violation, because it happened in their State plan,
which means the penalty is not quite as high as it would be if
it was under Federal jurisdiction.
Senator Murray. Say that for us once more, because I think
it's really important to understand.
Mr. Barab. OK. In the State-plan States, there are 21
State-plans that run their own State programs including
Washington, North Carolina, Minnesota. These States basically
do their own inspections. When they run across a citation for
an issue that we've also found in one of our Federal
investigations, they can't cite that as a repeat.
Now, we can do that. If we find something in one facility
and find something in another facility, we can site that as a
repeat.
Senator Murray. But, a State can't.
Mr. Barab. Right. Right. If it's in----
Senator Murray. So, it wouldn't be----
Mr. Barab. They're two different jurisdictions, right.
Senator Murray. OK.
What new powers would you recommend OSHA to have to force
some of these companies to take these problems seriously
throughout their entire facility, not just at the one?
Mr. Barab. Well, one thing obviously is, we need higher
penalties. Now, there are rare situations, such as BP, where
you have a really egregious situation, where we can levy high
fines. But, under normal circumstances, we can't. I think the
average penalty for all of our refinery citations under NEP is
about $160,000, which is not real high for a major
petrochemical company.
I would like to point out something else, though, which is
very important, and actually is addressed in the Protecting
America's Workers Act. We cannot force a company, whether it's
a refinery or any other company, to abate a hazard while our
citation is being contested. And these contests can often go on
for years. And I know that was one of the explanations----
Senator Murray. So, is it to the company's advantage to
contest that, because----
Mr. Barab. Exactly. Exactly. And I know this was an issue--
this has been an issue recently raised in your State, with the
previous Anacortes inspection citations--that the State decided
to settle that for a very low amount of money, because they
really wanted to get that fixed. They wanted the company to fix
the problems there. The only way to do that was to settle it
quickly, instead of having the contest linger on and on and not
have those problems corrected.
Senator Murray. So, it forces settlements, as well.
Mr. Barab. Right.
Senator Murray. And do workers continue to go to work if
there is a safety violation, and that violation is being
contested, and it hasn't been repaired or fixed or changed?
Mr. Barab. Yes, yes. Because, again, we can't, by law,
force them to fix a problem. Unless it's an imminent danger, we
can't force them to fix the problems that we've identified in
our citations, while there is a contest going on.
Senator Murray. So, is it safe to say that workers are
going to work in unsafe conditions, simply because something's
being contested and somebody's deciding, somewhere?
Mr. Barab. Yes.
Senator Murray. OK. You mentioned, a minute ago, the NEP
program. That was actually established after the BP Texas City
refinery accident, in 2005, where there were 15 deaths and 170
injuries. And it was really intent on really targeting some of
these petroleum refineries and focusing on this. After that
program was established, the work in Washington State, at the
Tesoro plant in Anacortes, they were inspected. They were cited
for 17 serious violations in April 2009. And then the tragic
accident happened on April 2, 2010. Seven workers died.
I wanted to ask you, Do these inspections happen at every
oil refinery in every State, including States with State-run
OSHA programs?
Mr. Barab. I'd say, in general, yes. Our NEPs have not,
until--we just changed our policy--but, generally, or very
often our NEPs did not require State participation. They
invited State participation, voluntary participation.
Senator Murray. Do they now require it?
Mr. Barab. We've just changed that policy. We're now
requiring States to participate in all national emphasis
programs.
Senator Murray. So, it's no longer discretionary; you're
requiring them to----
Mr. Barab. Well, for the ones, moving forward. Now, the
ones that are already in operation, it's still optional.
Now, for the refinery NEP, it turns out that all the
States, I believe, with the exception of Alaska, have State-
plan States that have refineries in them, with the exception of
Alaska, have either decided to participate in the NEP or have
an equivalent program--more-or-less equivalent program to our
NEP.
Senator Murray. And does that require them to inspect the
entire facility?
Mr. Barab. No, we do not inspect the entire facility;
neither we, nor they do. These are enormous facilities. These
inspections are extremely resource-intensive. What we do, and
what the States do, as well, is, we'll go in and we'll do a
preliminary overview of the facility and, based on a number of
different factors, decide to inspect one or two or three of the
units in each facility, and based, again, on a number of
different criteria, including how hazardous they seem to be,
whether there've been any preexisting incidents, whether the
workers there have informed us of any problems there. And we
will do our inspections there. We don't really have the
capacity to do a wall-to-wall inspection----
Senator Murray. You don't.
Mr. Barab [continuing]. Of every refinery.
Senator Murray. And so, real quickly--my time is out--do
you know if the Naphtha unit, where it was believed the fire
started in the Anacortes Tesoro refinery, was inspected during
the inspection, while enforcing the NEP in April 2009?
Mr. Barab. From our information, yes, it was part of the
inspection that they did at that refinery. Now, whether they
inspected the exact thing that caused the problem, the
explosion there, we're not sure, because that investigation
hasn't been done yet.
Senator Murray. OK. Because, it's my understanding that it
was not inspected.
Mr. Barab. From what we hear, it was part of the
inspection.
Senator Murray. OK. Thank you.
Senator Isakson.
Senator Isakson. Thank you for attending, today. I
appreciate your work.
First of all, you have no jurisdiction outside of 3 miles
on offshore drilling. Is that right?
Mr. Barab. Basically, yes. There are some small exceptions.
Senator Isakson. MMS has that responsibility?
Mr. Barab. MMS and the Coast Guard, yes.
Senator Isakson. Do you know whether MMS and the Coast
Guard ever consulted with you all, or whether you all consulted
with them, with regard to safety requirements on deepwater
rigs?
Mr. Barab. I'm pretty sure we did not.
Senator Isakson. OK. But, you do have jurisdiction inside
of 3 miles. Is that correct?
Mr. Barab. Not really. Technically, we do have
jurisdiction, but there's a clause in the Occupational Safety
and Health Act, paragraph 4(b)(1), that gives agencies that
have authority over regulating certain industries the ability
to also--they essentially preempt us. And the MMS has asserted
jurisdiction over health and safety off of the offshore rigs.
So, we're essentially preempted from those, as well.
Senator Isakson. So, your responsibility starts at the
beach.
Mr. Barab. Basically, yes.
Senator Isakson. Well, in this particular incidence, that
is an important issue, because that's where a lot of the
cleanup's taking place.
I understand OSHA specifically singled out the person BP
had put in charge of safety for criticism, and strongly
suggested that he be replaced. Has he been replaced?
Mr. Barab. We weren't trying to identify any individual.
Our problem was a more systemic problem. There was no one in
place--there was one person we were dealing with, but BP had no
one in place, really, that had the authority to cover health
and safety on the whole Gulf Coast.
We were basically dealing with individuals.
Senator Isakson. In terms of the cleanup.
Mr. Barab. In terms of the cleanup.
Senator Isakson. Do they have a person in charge of it now?
Mr. Barab. Yes, they do.
Senator Isakson. OK. Have you issued any--do you know if
there have been any citations issued on the cleanup?
Mr. Barab. No, there haven't been.
Senator Isakson. There have not. OK. Do you think there
should be some sort of coordination between MMS and OSHA with
regard to safety? MMS has other issues, other than safety,
obviously, in dealing with offshore drilling. Do you think
there's any--do you think it would be good or important for
OSHA to have a safety role within MMS?
Mr. Barab. Well, I think any--or any government agency that
deals with similar issues, there should be a lot more
coordination than there has been. And we are trying to do that
now. For example, on the cleanup, we're working with a number
of different agencies on addressing the cleanup.
We're also trying to work--in terms of addressing issues in
refineries--we're trying to work much more closely with EPA,
which has important information. So, I would certainly think
that would be a good idea.
Senator Isakson. Well, the reason I point it out--
oftentimes, when you have a tragedy take place, we look back at
what we should have done and don't look forward to what we have
to do. I think the Chairman and I both feel like we'd love to
be part of an effort that sees that this never happens again.
So, as we try and deal with the byproducts on the disaster--the
tragic loss of life, the injuries, the damage to the
environment and the ecology--we also need to see what it is we
need to put in place as it relates to deepwater drilling and
safety so that, to the maximum extent possible, the tragic loss
of life goes to zero, as well as injury, while we still have a
safe system of extracting injury.
So, I hope the agency--sometimes, and we're bad about it in
the Senate, you take an issue, and you talk about what has
happened, but you don't talk about what needs to happen. Then
something else happens, and public attention goes away, and you
miss some opportunities to make some fundamental changes that
will make a difference.
I would encourage the agency to think--as you try and deal
with safety violations in the cleanup in the Gulf, which I know
is your responsibility--or on the beaches and the estuaries--
also, as you're doing that, use it as a learning experience to
help us know what it is we need to put in place, either in a
regulatory regimen or a legislative regimen, that can help see
to it that this never happens again.
Mr. Barab. Yes. Thank you.
Let me clarify one thing, also, about your reference to the
beaches. Again, we don't have jurisdiction over the rigs within
3 miles, because we've been preempted. In terms of the cleanup,
though, we do have jurisdiction over these vessels of
opportunity--the boats that are going out. And we've been on
those boats, monitoring the air. So, we do have that----
Senator Isakson. Good.
Mr. Barab [continuing]. Our jurisdiction, in terms of
cleanup workers, does not stop at the beach.
Senator Isakson. Good.
Again, thank you for your testimony today.
Senator Murray. Senator Hagan.
Senator Hagan. Thank you, Madam Chairman.
Mr. Barab, in your testimony, I noticed that the oversight
of the oil and gas industry is highly fragmented. And in
addition to OSHA--and some of this has come up within the
Department of Labor--the oil and gas industry is also
regulated, in part, by several other agencies, including the
Coast Guard, within the Department of Homeland Security, and
the Minerals Management Service within the Department of the
Interior. So, from a format question having to do with
employees, when workplace safety issues is raised, who should
the employee turn to? How do the agencies determine who takes
the lead on a claim? And then, who processes the claims? And
then, how do these different agencies actually coordinate with
one another?
Mr. Barab. Well, again, the agency that has authority over
health and safety of workers is the agency that receives the
complaints from workers, and should be addressing, also, the
health and safety problems at that facility. So, in this case,
in the case of the Deepwater Horizon, that would have been the
Mineral Management Service, although there's some shared
jurisdiction, also, with the Coast Guard there, as well.
Obviously, for things under our jurisdiction, we receive
the complaints, and we address the problems at those
facilities.
And we are trying--this is a general administration push to
reduce the siloing, and actually have much more interaction
between different agencies. And I think we've been successful
at that. Obviously, there's a ways to go to increase the
interactions between the agencies.
Senator Hagan. So, you say you've taken these silos apart
and you're able to work together.
Mr. Barab. Well----
Senator Hagan. What have you done?
Mr. Barab [continuing]. We're trying to do that. It's not
as easy said as done.
Senator Hagan. What have you accomplished so far?
Mr. Barab. Well, actually, with that Mineral Management
Services, I'm not sure that we've had much contact up until
now. We have been--again, coming back to refineries, we are
trying to figure out a better way to target dangerous
refineries so that we're not inspecting the ones that don't
have any problems, and we are going to the ones that do have
problems. One of the ways we're trying to do that is to get
information from EPA. EPA has a whole system where they also
look at refinery safety--more from the public standpoint, but
they collect a lot more information, in terms of releases and
leaks, than we do. So, we're trying to work very closely with
them to get some of that information that will indicate where
we need to go and inspect.
Senator Hagan. So, do the employees of these different
areas know which agency to actually turn to with a complaint?
Mr. Barab. I hope so. One of the major pushes that we've
done under this administration, within OSHA, is just to make
sure that workers under our jurisdiction know who we are, how
to get in touch with us--we put a particularly special focus on
reaching immigrant workers and other hard-to-reach workers who
don't have unions, may work for very small companies. We've got
all kinds of little cards and public service announcements,
making sure that they know that we exist, that we are there to
look at their health and safety, and that they can call us if
they have a problem.
Senator Hagan. Do you know about the Minerals and
Management Service?
Mr. Barab. I don't. I'm sorry.
Senator Hagan. Also in your testimony, you noted that in
the past 4 months, alone, at least 58 workers have died in
explosions, fires, and collapses at refineries, coal mines, an
oil drilling rig, and a natural gas-fired power plant
construction site. And obviously this is certainly an alarming
statistic.
What are OSHA's processes for establishing standards for
workplace safety in the oil and gas industry, and how often do
you review them?
Mr. Barab. Well, the standard-setting process is probably a
subject for another hearing. It's not easy to set standards;
it's not easy to update standards, unfortunately. And that is a
focus of this administration, particularly Dr. Michaels, in
trying to speed that process up.
We feel our Process Safety Management standard is an
excellent standard. There are certainly issues with it that
have come up through court interpretations, other issues that
have been raised, for example, by the Chemical Safety Board
report, where it could stand some improvement.
One area that we are particularly lacking, I think, is if
you go into oil- and gas-well production on land. We don't have
a specific standard for that. They're not covered by our
Process Safety Management standard. So, we use a number of
other standards, including our general duty clause, which kind
of covers everything that's not covered by a specific standard,
to enforce safety and health conditions on those sites. But,
that is one area that probably could use some work, in terms of
better rules and regulations.
Senator Hagan. Do you look at other standards that are
around the world on these refineries?
Mr. Barab. Yes, we do. We look at other standards around
the world. We also look at some of the States. Some of the
States have different standards than we do, and sometimes more
effective standards than we do. I think you're going to hear,
for example, from Contra Costa County. But, both that county
and the State of California have different Process Safety
Management regulations, slightly different than we do, and
there are certainly things we can learn from that.
Senator Hagan. OK. I also noticed a recurring theme in the
testimony, and that has to do with the notion of a workplace
culture or a culture of safety. And how important is it for
employers to establish a culture of safety at the workplace?
And what can we do to encourage employers not just to deal with
specific safety concerns when they arise, but to certainly
establish an overall culture of safety so that the small issues
don't turn out to be the big problems?
Mr. Barab. Right. Yes, the issue of workplace safety
culture is an interesting one. I think that was one of the
definite failures that we pointed out, that the Chemical Safety
Board pointed out, that the Baker panel pointed out at BP, for
example.
But, the companies need to understand--and some are better
than others--that workplace safety culture is not just
exhorting everybody to think ``safety first.'' Workplace safety
culture is really a combination of all the processes and rules
and practices that go on in an organization. And that's what
we're really trying to push, both through our Process Safety
Management standard, in terms of trying to use that really to
push the whole concept of an overall culture forward, but also
in terms of any kind of compliance assistance we're doing,
speeches we're doing, working with other organizations, such as
the Chemical Safety Board, such as EPA, to try to make sure
that these companies understand the value of a real workplace
culture.
Senator Hagan. Thank you, Madam Chairman.
Senator Murray. Senator Bennet.
Senator Bennet. Thank you, Madam Chairman.
And thank you for your testimony today. We deeply
appreciate it.
I realize that OSHA has no formal oversight role with
regard to offshore drilling. But, one of the things that
troubles me the most about the Transocean situation are the
allegations that safety concerns from workers were ignored or
brushed under the rug. And I wonder if you could share with the
committee how such allegations are ideally investigated and
dealt with in the onshore oil and gas context. And what work
needs to be done to make sure that, when workers do see a
dangerous situation and raise concerns, that they're able to do
it free from intimidation and in a way that actually gets to
the regulators' attention?
Mr. Barab. Yes. Thank you for that question. It's an
extremely important subject, on the whole idea of workers being
free to complain about their health and safety problems and to
exercise their rights.
We have a very limited number of inspectors, and one thing
we've found over the many years is that OSHA does not work
unless workers participate. And if workers don't feel safe to
participate, they're not going to do that.
Unfortunately, the whistle blower part, paragraph 11(c) of
the Occupational Safety and Health Act, is very old. It's as
old as the act itself; almost 40 years old. And if you look at
all the whistle blower laws that have been passed since then,
ours is probably about the weakest. That's another part of the
Protecting America's Workers Act that would be significantly
improved, should it be passed.
But, especially in refineries it's important, because
obviously in refineries, as I mentioned in my testimony, you
want to learn from your mistakes; you need to learn from the
close calls and the near misses. Unless workers feel free to
report up through management about those close calls that other
people may not have seen, there's not going to be any learning
going on. So, it's extremely important, particularly in
refineries, and anywhere where you're dealing with process
management problems, for workers to feel protected, to feel
safe to actually exercise their health and safety rights.
Senator Bennet. On a spectrum, how would you evaluate where
we are right now, in terms of people feeling that way?
Senator Bennet. It's hard to imagine how the system would
actually even work unless that could happen.
And, by the way, even for those companies that are very
well intentioned and really want to do the right thing, if
they're not hearing from the people that are closest to the
problem, that's a real--it would seem to me--a real issue.
Mr. Barab. Yes. And we are, very unhappy with the state of
whistle blower protection under our law. I just testified in
the House a few weeks ago, and somebody testified there, saying
that he basically had a good claim. We found in his favor. And,
because of the intricacies of our law, we couldn't really do
anything to force the employer to actually make him whole
again.
And, as I said there and I'll say now, I'm outraged that,
at this point, in the year 2010, 40 years after the
Occupational Safety and Health Act was passed, workers still
have to be afraid to exercise their rights under the law.
Senator Bennet. Slightly different but related point on the
question of how we--as we think about OSHA's regulations--how
we improve stakeholder engagement in the development and
implementation of those regulations--how are employers and
employees currently engaged in those discussions? Are there
ways that we can better empower workers in those discussions?
And what are we doing--to go back to Senator Hagan's question--
to do what we can in the development of these regulations to
build a culture of compliance and a culture that we can all be
proud of?
Mr. Barab. Right. Well, as I said, the law doesn't really
work unless workers are involved.
One of the initiatives we're taking--and Dr. Michaels
announced this during our last regulatory agenda--is an injury
and illness prevention program that every employer would have
to have. That would not only cover hazards that are covered by
standards, but also hazards that the employer recognizes that
aren't necessarily covered by a specific standard.
One of the key components in that would be worker
participation. You need to have worker participation anytime
you're looking at health and safety hazards, because the
workers on the front lines are really the main experts there.
So, they need to have a vehicle for participation. And, as I
said, they need to feel safe in that.
Part of workplace culture is a culture where workers do not
have to fear their participation in the health and safety
programs in those companies, where they can feel safe to
complain about health and safety problems to their supervisor,
to upper management, and to OSHA, without being retaliated
against.
Senator Bennet. Thank you, Madam Chairman.
Thank you.
Senator Murray. Senator Franken.
Senator Franken. Thank you, Mr. Barab.
Let's just follow up on that, first. Because, you're saying
the law doesn't work unless workers are involved. And yet, you
seem to be suggesting that you're not happy with the state of
whistle-blower protection. What happens to workers in these
refineries who sound warnings? Do they get fired?
Mr. Barab. Well, I can't speak to any specific case in the
refineries, but, in general, we've seen a lot of workers in
general industry, yes, being fired or discriminated against for
exercising their health and safety rights.
Senator Franken. OK. Well, I'm a cosponsor and strong
supporter of the Protecting America's Workers Act. And it has
whistle blower protections in it. And I think these are
absolutely vital, and that we get this done as soon as
possible, and protect people, so they can come forward. You'd
think it would be in the industry's interest to have their
workers come forward and take part in this.
It's been mentioned that the statistics about workplace
injuries do not reflect contract workers. I want to ask you
about this. I understand that it's the case that a refinery can
contract out its most dangerous work. What is the justification
for excluding these contractors in the statistics about
workplace injuries? And what could be done to change the way
data is collected so that these numbers more accurately reflect
the injuries and deaths that actually occur?
Mr. Barab. Yes. Generally, if you look at the BLS
statistics, injury, illness, and fatality statistics are kept
by what was SIC codes and now are NAIC's codes--North American
Industrial Classification codes--and those run by industry. So,
when you're in a refinery, the refinery part of that--the
refinery owner will report injuries and illnesses for that
refinery's employees. If the refinery hires a contractor--and
in many refineries, a very large number, sometimes a majority,
of workers on a refinery will be contractors--they don't go
into the refinery contractor--the refinery code; they'll go
into some kind of contractor code, which is not associated with
refineries. So, when BLS looks at the statistics--injury,
illness, fatality statistics for the refining industry, it
won't take into account all of the injuries, illnesses, and
fatalities that happened with the contractors.
And a good example of that was BP; all 15 workers killed in
that refinery were contractors. So, BP's fatality rate looked
the exact same the day before the explosion as it did the day
after the explosion.
Now, that has implications for us, because, to a certain
extent, we also target our inspections. We're going to change
that, but we've been targeting our inspections based on these
injury and illness statistics for the refining industry. And if
you just look at the narrow refining industry code, and you
just look at the personal health and safety--slips, trips, and
falls--they look pretty good. It won't take into account,
obviously, the injuries and illnesses that then happen to the
contractors.
One thing we're working on, and trying to see if we can
change this through regulation, is requiring a site log for
refineries and, for that matter--it's not just refineries--
steel mills, chemical plants--where, instead of just getting
the log--employers are required to keep these logs--instead of
just getting the log, for the refinery owner, that contains the
refinery's employees, we get their log for the entire site,
which means we get the injuries, illnesses, and fatalities for
everyone actually working on that site--the refinery owner, as
well as the contractors.
Senator Franken. Well, that seems to make perfect sense,
and seems to me crazy that we haven't done that sooner, because
if they can point to their safety record, and if the BP Texas
plant can say, ``No one--none of our workers have been killed''
even though 15 people were killed there.
Mr. Barab. Exactly.
Senator Franken. So, those statistics, then, are not next
to useless, they're actually useless. So, we have a system
where we're relying on absolutely useless statistics.
Mr. Barab. Yes, I wouldn't call them completely useless,
but they certainly aren't as useful as they could be, yes.
Absolutely.
Senator Franken. Well, I think it's pretty useless when 15
people were killed, but they can write down that no one was
killed.
Mr. Barab. Right.
Senator Franken. Another issue I've found very frustrating
is the problem of contesting all safety conditions. We heard
about it in the full committee, just a couple weeks ago, about
how Massey mines had received hundreds of citations, but,
because they were contesting them, they're not required to
correct the dangerous conditions. This provides an incentive
for them to contest everything, doesn't it?
Mr. Barab. It does. It does. The contest rate is not nearly
as high as it is in the mine safety area. But, certainly it's
high enough, and it happens enough that it is a major problem,
again, for making sure that----
Senator Franken. As the Chair mentioned, it gives you
incentive to settle.
Mr. Barab. Exactly. Exactly.
Senator Franken. OK. Well, how can we fix the law to
eliminate the perverse situation?
Mr. Barab. Well, the Protecting America's Workers Act
actually would provide OSHA with the ability to force companies
to abate hazards even while they're being contested.
Senator Franken. Good. Thank you.
Thank you, Madam Chair.
Senator Murray. Thank you, Senator Franken.
And I just would mention the issue with the contractors
being cited separately is probably why we saw the report that
Deepwater Horizon had a group of BP executives on board
celebrating the crew's safety achievements on the day when the
tragic accident occurred. And we've seen that in other places,
as well.
Senator Casey.

Statement of Senator Casey

Senator Casey. Thank you, Madam Chair.
And, sir, thank you for your testimony and your commitment.
I know it's not easy to serve in government agencies at a
difficult time, and we're grateful for your work.
I wanted to, first of all, set forth a predicate for my
question and then ask you, maybe, to wear two hats, not just
the hat that you wear every day as Assistant Secretary for
Occupational Safety and Health, but also to give some advice. I
want to localize it to Pennsylvania, and shift the focus or
emphasis on a particular problem we're having in our State.
We have a tremendous opportunity in our State that comes
from Marcellus Shale and the gas that comes from that, an
energy source, and the economic benefits from that.
I have real concerns about how fast it's moving, and I have
a bill that speaks directly to the hydraulic fracturing
concerns that I have. There's also worker safety issues, as
well.
I realize you don't have jurisdiction that directly applies
to this, but I'd ask you this. In the context of a recent
experience, just within the last week, we had a blowout--I want
to be precise, it wasn't an explosion--no one died and no one
was injured, but, it was a blowout that potentially, I should
say, caused at least some environmental damage. But, what arose
in the aftermath of that was a whole series of problems:
expertise having to be brought in from Texas to Pennsylvania,
hours waiting for them to get there--so, you don't have local
expertise; access to the site; potential environmental
compromise and contamination. So, a whole series of questions
for local officials, State officials, and maybe Federal.
I just want to ask you about--you made reference earlier
to--in areas where you might not have direct jurisdiction--
general--what you called, I think, a general duty clause. I
wanted to ask you about that, if it applies at all.
But, I guess I really wanted to focus on--can you give us
some guidance or advice on a couple things: First of all, if
there is no Federal jurisdiction in the context--in that
context of a hydraulic fracturing situation, is there statutory
changes we could make to help?
And third, in the Department of Labor, are there services
you can provide to a State that may not involve oversight, but
you may be able to help with training or expertise or other
services?
I know that's a lot in--you've got 2 minutes and 11
seconds.
Mr. Barab. Yes, let me clarify. First of all, I didn't mean
to say that we don't have jurisdiction over these rigs on land;
we do have jurisdiction over them. What we don't have is a
specific standard that applies to that industry----
Senator Casey. OK.
Mr. Barab [continuing]. What we call a ``vertical
standard.'' Now, we have a number of standards that may apply
to the different operations within those operations. We also
have our general duty clause. Where we don't have a specific
standard, we can still use that. And there are, again, some
regulatory holes there, because we don't have a specific
regulation.
Probably one of the biggest problems we have, in terms of
enforcement in these rigs, is that some of them are very small
companies. There is a rider on our legislation that says that
we basically can't--unless there's a fatality or a
catastrophe--we can't go in and inspect those, if they're under
10. And it's very upsetting for us, because, as you know, the
fatality rate in these kind of rigs in these operations are
very high. We're not able to go in there and really do the kind
of preventive work that we'd like to do.
So, that's a problem. And the fact that we don't have a
specific standard is somewhat of a problem, which isn't to say
that we can't get in there and do the education and
enforcement.
Senator Casey. I just want to stop you for a second--that
particular problem would need to be--if it were cured--does it
have to be statutory? Or can you do it by way of regulation?
Mr. Barab [continuing]. The 10 and under?
Senator Casey. Right.
Mr. Barab. Yes, that's a rider that's been a rider for a
long time on our appropriations bill.
Senator Casey. OK. I guess I'm asking for advice, as well
as information, about services--is there anything the
Department of Labor can do to provide help as it relates to
training at the site or training at sites like that?
One of the fundamental problems we had was, you had
emergency workers getting there, having difficulty getting
there because of the location of it, but then not having the
training that could provide some help while they're waiting for
the plane to land from Texas with real expertise. So, I don't
know if you have any suggestions----
Mr. Barab. We have a number of standards that deal with
emergency response situations like that, that they are supposed
to be complying with. We also have a very vigorous compliance
assistance program, where we have fact sheets and manuals and
things that we are more than willing to get out to anyone who
needs them.
We also have a, unfortunately, fairly small program of
worker training grants, called our Harwood Training Grant
Program, that we use to mostly give to nonprofits, which could
be industry associations, labor unions, and people like that,
that deal with these industries. So, there are a variety of
different ways, in addition to enforcement, that we address
these problems.
Senator Casey. Thanks very much. I'll probably be sending
you some follow ups on this. Thank you.
Mr. Barab. OK, good.
Senator Murray. Mr. Barab, I just have one other question,
broadly. The voluntary protection program that's in place,
which I understand the need to do that, but I wanted to ask
you--Are all the participants in that exempt from all planned
or programmed inspections during the refinery and EP
inspections?
Mr. Barab. Yes.
Senator Murray. They are.
Is it true that Federal OSHA doesn't inspect VPP member
sites? And why would companies enrolled in this program be
exempt?
Mr. Barab. When companies are in the process of enrolling,
there is a thorough inspection of the facility. After that,
however, every, I believe, 2 or 3 years, the companies come up
for renewal. And then, in this case, there are a number of
questionnaires and questions that they have to answer about
their process safety management system. But, at this point, we
do not go back in and inspect.
Now, we are taking another look at that.
Senator Murray. So, isn't that just a real incentive for
people to get into this program? Because, in an industry that
obviously has got some egregious safety records and some
dangerous situations, to get in the program, never inspected?
Mr. Barab. Well, exemptions are certainly an incentive for
getting in the program. However, at least when they get into
the program, we have a fairly rigorous program of making sure
that they are safe. Now, what happens, 2, 3, 4, 5 years down
the line, they give us a lot of information, but we actually
don't go back in and inspect--unless there's a fatality or a
catastrophe or we get a worker complaint; we can go back in.
But, they're not part of the NEP, as it stands right now.
Now, we are looking at that situation again. And we are
going to at least go into a few of the VPP sites in the future.
Our problem right now is resource issues. We are still strapped
tight, trying to finish up the refinery NEP right now. We just
don't have the resources to do that. But, that's a concern of
ours, because there have been incidents in the VPP plants.
Senator Murray. Well, if you could get back to me, for the
record, not answer right now, how many inspectors you do have
and what the cost would be in order to provide the inspections
that you believe are necessary.
Mr. Barab. OK.
Senator Murray. Senator Isakson.
Senator Isakson. Thank you, Madam Chairman.
Two points I want to try and correct the record on. And if
I'm incorrect, I want you to correct my incorrectness.
When Senator Franken was asking the question about whistle
blowers, is it not, in fact, true it's against the law to fire
or punish a whistle blower?
Mr. Barab. It is against the law, yes.
Senator Isakson. OK. So, that's punishable now, in answer
to the gentleman's question. We haven't been asleep at the
switch on that.
And the other one, with regard to the MSHA comments on
immediate correction--under MSHA's authority, they do have the
authority to immediately mandate compliance, and they also have
authority to shut down a mine. Now, the contesting of MSHA can
only be the amount of the fine, not the correction. Is that not
correct?
Mr. Barab. I'm not an expert on the mine safety law.
Senator Isakson. Well, then I'll depend on my answer until
somebody corrects me.
Mr. Barab. OK.
Senator Isakson. But, I think that's correct, because the
Chairman and I did the MINER Act a few years ago and--when we
had the tragic thing at Sago--and MSHA does have the ability to
immediately mandate compliance. The company can't contest the
compliance. They can contest the fine, but that happens later.
Thank you.
Mr. Barab. OK.
Senator Murray. If there are no more questions----
Senator Franken. Well, let me just follow up on Senator
Isakson's question, because he's saying that it's against the
law for someone to fire a whistle blower. But, in your
testimony, you seem to think there's some problem here. Is
there some space between the law and reality that we should
know about?
Mr. Barab. Yes. You obviously have to--the worker who feels
he or she has been discriminated against obviously has to prove
that case. There are a number of criteria that they have to use
to prove that case. There are a number of deadlines. There are
a number of appeal procedures.
The problem with the Occupational Safety and Health Act,
11(c), is that the burden of proof for the employee is
extremely high. The deadlines are very short. For example, you
only have, I believe, 30 days to actually file a complaint,
whereas you may not even know that it exists at that time. They
have very, very limited appeal rights if the decision goes
against you; very limited rights to get the evidence from the
employer, also.
There have been a number of other whistle blower laws that
have been passed since 1970 that provide workers with many more
rights, in terms of lowering the burden of proof, giving them
more time to file complaints, giving them more ability to
appeal the complaints, than we have right now under the
Occupational Safety and Health Act.
Senator Franken. So, just reporting from your own
experience that there is a sense of intimidation that does
affect whistle blowers, that it makes people think twice about
becoming whistle blowers--and this is just your judgment of
your experience--and that would have an impact on worker
safety. Am I right in drawing those conclusions?
Mr. Barab. Yes, absolutely. I've had a long career in this
field on a variety of different jobs--labor unions, different
government agencies. It's kind of a constant, that the workers
are naturally intimidated, unless they feel safe, or even
encouraged, hopefully, to report problems.
Senator Franken. So, it seems to me that what's important
here isn't that there is a law. The importance is the reality
of how strong the law is and what the repercussions of that
are. And it seems that the repercussions of that are less-safe
refineries and the kinds of tragedies that we've seen.
Mr. Barab. Yes.
Senator Franken. Thank you.
Senator Murray. And I would just add to Senator Franken's
comments, too, just watching news reports of some of the
workers who testified, or who are talking to the news media,
are very concerned that when the attention moves away from this
issue, as we always tend to do here, that their jobs are at
risk. So, whether real or perceived, that is a concern for
workers speaking out. So, it's something we have to comprehend
as we go through this.
Mr. Barab. Yes. And most work--we've been talking about the
big accidents here, the big explosions at BP, there have been a
number of other ones--Senator Hagan, you had your West
Pharmaceuticals and--these are the ones that make the big
headlines. The fact is, 5,000 workers die in this country every
year. Most of them die one at a time, there's no publicity--
maybe a very short article. So, it's not like there are all
kinds of national attention that's going to protect them;
they're just out there by themselves. And these are the ones
that are killed; we're not even talking about the ones that are
injured or the ones that just barely escape.
Senator Murray. OK. Well, Mr. Barab, we really appreciate
your testimony today.
I would ask that you would remain at the table, in case we
have any more questions for you when we hear from other
panelists.
With that, I would like our second panel to join us here at
the table, and welcome them all, thank them for coming today to
testify for us. And if you would move forward and sit at the
front, here, I will introduce you as you are moving forward.
We have, Kim Nibarger who is the health and safety
specialist for the United Steelworkers in Pittsburgh, PA. Mr.
Nibarger happened to be also on the scene of the two fatal
accidents in refining industries in my home State of
Washington; Randall Sawyer, who is the director of the
Hazardous Materials Program for Contra Costa County, in
California, that has been mentioned up here; and Charles
Drevna, who is the president of the National Petrochemical &
Refiners Association.
As with the first panel, I would like to ask all of you to
keep your opening remarks to 5 minutes. And your full testimony
will become part of our record.
So, Mr. Nibarger, we will begin with you.

STATEMENT OF KIM NIBARGER, HEALTH AND SAFETY SPECIALIST, UNITED
STEELWORKERS, PITTSBURGH, PA

Mr. Nibarger. Madam Chair, members of the committee, thank
you for the opportunity to appear before you this morning.
The United Steelworkers represents about 850,000 members in
the United States and Canada employed in virtually every
industrial segment of the workforce. Among oil refineries, the
USW represents about 30,000 workers employed at more than 20
companies in the United States.
I had just arrived at my parents' home in Anacortes, WA, in
the early morning of April 2 this year, when I heard an
explosion and knew immediately that something bad had happened
at one of the local refineries. This was of particular concern
to me, as I was an operator at the now Shell refinery in
November 1998 when we had a releasant fire that killed six of
my coworkers. Little did I know that the sound I had just heard
was signaling an even more deadly accident.
Since the seven fatalities at the Tesoro refinery, there
have been fires and explosions reported at 12 U.S. refineries,
as well the fire and explosion of the Deepwater Horizon
drilling rig. There have been 29 fires and explosions reported
in refineries so far this year. In the majority of these, no
one was hurt, but that was primarily a matter of luck.
Meanwhile, these refinery accidents have caused nine fatalities
and sent at least five workers to the hospital.
The details of these accidents are frightening and
instructive, but it would take far too much time to recount
them all this morning. Instead, I want to concentrate on fixing
the problem. Lessons not learned are failures we must never
forget. The high number of fatalities at Tesoro was a result of
too many people being where they didn't need to be. One of the
findings of the U.S. Chemical Safety Board BP Texas City
accident was that there were unnecessary people in the area
during a startup. Startup is an especially hazardous time in a
refinery. There are several other accidents where this was
true, yet we continue to have people in an area that they don't
need to be, at a time they don't need to be there.
As the result of another CSB recommendation from BP Texas
City, we have seen trailers, for the most part, moved out of
predicted blast zones, only to be replaced by tents, which are
allowed by a newly-written API-recommended practice.
Tougher standards. The oil industry is basically self-
regulated. Through a consortium of oil companies known as the
American Petroleum Institute, recommended practices are written
and adopted--they're voluntary--to control safety in the oil
industry.
I think a prudent individual understands that when you
write the rules to govern yourself, you typically are pretty
lenient. It's like the fox guarding the henhouse.
OSHA needs to exert more control over the standards for
health and safety in the oil industry. The Process Safety
Management standard must be updated and made stronger. A new
measurement of process safety performance needs to be developed
by OSHA for this industry. The traditional OSHA 300 injury log,
which tracks personal injuries, like slips, trips, and falls,
is not an indicator of process safety.
In order to accomplish these objectives, OSHA needs to have
their funding increased. By using leading process safety
indicators, such as activation of pressure relief systems, you
are looking at what in the process was out of the operating
parameter to cause or allow an excursion. This gives you the
opportunity to go back and correct a system failure.
Rigorous regulation. The Protecting America's Workers Act,
legislation that is currently before Congress, must be passed.
We hear many complaints about OSHA not doing enough, but one of
the biggest problems was the limit to what OSHA can currently
do and the limited response required of the company to OSHA
citations.
OSHA has instituted a National Emphasis Program for oil
refineries. The national program has completed 55 inspections,
but only 14 of those have been settled. The other inspection
citations have all been contested by the company issued the
penalty. This means that the company is not required to take
any action to abate the hazardous situations identified that
has a potential to harm workers in a community. In most cases,
a contest period results in citations being negotiated away and
fines reduced. Where is the incentive to fix items, or even
follow the rules, when it costs so little, or requires no
action on the company's part, if they do not follow the rules?
To sum up, we are not seeing new causes of accidents in the
refining sector. The causes of accidents are the same, time and
time again. We need an increased commitment to mechanical
integrity, assuring that we're inspecting the right equipment
in their correct locations at the proper times.
It's like changing oil in a car. When you have a new
automobile, you're cautious about changing the oil at 3,000
miles. When you have a 10-year-old car, you don't change the
oil at 10,000 miles. It's more critical, as the automobile
ages, that proper maintenance schedules are maintained. This is
not the situation we are experiencing in the refining sector.
These plants are getting older; and yet, over the years, the
oil change--in this case, the turnarounds--are being pushed out
further and further. Not the most reliable way to treat an old
car.
Until there are controls in place to make it less
profitable to disobey the standard, these actions will
continue. Only when the consequences of allowing workers to be
injured or killed on the job are severe enough will companies
take serious action to change their safety culture.
Thank you for giving me the opportunity to testify this
morning.
[The prepared statement of Mr. Nibarger follows:]

Prepared Statement of Kim Nibarger

Madame Chair and members of the committee, thank you for the
opportunity to appear before you this morning. My name is Kim Nibarger.
I am a member of the United Steelworkers (USW), and a Health and Safety
Specialist for our International Union's Health, Safety and Environment
Department in Pittsburgh.
The USW represents about 850,000 members in the United States and
Canada employed in virtually every industrial segment of the
workforce--steel of course, but also, paper, mining, aluminum and other
nonferrous metals, chemicals, plastics, tires and rubber, glass, health
care, and petrochemicals. Among oil refineries, the USW represents
about 30,000 workers employed at more than 20 companies in the United
States.
It was nearly 3 years ago that I was last here, speaking on
supposed Lessons Learned from the horrific accident at BP, Texas City.
I spent a majority of my time speaking on lessons not learned or as a
colleague of mine has said, ``failures we must never forget.''
I had just arrived at my parent's home in Anacortes, WA in the
early morning of April second this year when I heard an explosion and
knew immediately that something bad had happened at one of the local
refineries. This was of particular concern to me as I was an operator
at the now Shell refinery in November 1998, when we had a release and
fire that killed six of my coworkers. Little did I know that the sound
I had just heard would signal an even more deadly accident.
The seven fatalities at the Tesoro refinery in Anacortes, WA is the
latest multi-fatality accident in the refining industry. But since then
there have been fires and explosions reported at 12 U.S. refineries as
well as the fire and explosion of the Deepwater Horizon drilling rig.
There have been 29 fires and explosions reported in refineries so far
this year. In the majority of these no one was hurt but that was
primarily a matter of luck. Personnel were not in the area at the time
or were able to get to a fuel isolation point quickly, for example.
Meanwhile these refinery accidents have caused nine fatalities and sent
at least five workers to the hospital.
The details of these accidents are frightening and instructive but
it would take far too much time to recount them all this morning.
Instead, I want to concentrate on fixing the problem.
lessons not learned, or as i said, failures we must never forget
The high number of fatalities at Tesoro was the result of too many
people being where they didn't need to be. One of the findings of the
BP Texas City accident was that there were unnecessary people in the
area during a start-up. Start-up is an especially hazardous time in an
oil refinery. There are several other accidents where this was true,
yet we continue to have people in an area that they don't need to be at
a time they don't need to be there.
This is just one example of recurring actions that have led to
accidents, injuries and fatalities. We still see releases and fires
from the continued use of atmospheric vents on process units. Operating
procedures are not being reviewed and updated to assure that the
correct steps to follow are in place. The management of change (MOC)
process (required to be performed for any change not in kind) is not
forceful enough to identify what may go wrong when a change is made;
they revolve more around justifying making the change.
As a result of another U.S. Chemical Safety Board (CSB)
recommendation from BP Texas City, we have seen trailers for the most
part moved out of predicted blast zones only to be replaced by tents
which are allowed by a newly written API Recommended Practice.

TOUGHER STANDARDS

The oil industry is basically self-regulated. Through a consortium
of oil companies, known as the American Petroleum Institute (API)
recommended practices are written and adopted that are voluntary to
control safety in the oil industry. They argue that this gives them the
flexibility to upgrade to new technology without having to rewrite the
rules, but rarely does the industry upgrade to current recognized and
generally accepted good engineering practices (RAGAGEP) as required.
I think a prudent individual understands that when you write the
rules to govern yourself, you typically are pretty lenient. It is like
the fox guarding the hen house; it might not stop a few chickens from
disappearing.
Process safety management (PSM) is a standard in the Code of
Federal Regulations (CFR) found in 29 CFR 1910.119, which is covered in
a little over 3 pages. The standard was developed with the intent of
preventing or minimizing the consequences of catastrophic releases of
toxic, reactive, flammable or explosive chemicals. It addresses 14
elements and is termed a performance-based standard because the
employer writes their own plan on how to achieve the objective defined.
OSHA needs to exert more control over the standards for health and
safety in the oil industry. The process safety management standard must
be updated and made stronger. A new measurement of process safety
performance needs to be developed by OSHA for this industry. The
traditional OSHA 300 injury log which tracks personal injuries like
slips, trips and falls is not an indicator of process safety.
My refinery, like so many others including BP Texas City, had a
very low personal injury number just prior to killing six workers. The
expanded use of contractors in the facilities is also skewing the
numbers; BP Texas City did not see their injury rate number go up after
the 15 fatalities because the workers killed were contractors and do
not show up on the host company accident and injury log.
By using leading process safety indicators such as activation of
pressure relief systems or safety interlock systems, you are looking at
what in the process was out of the operating parameter to cause or
allow the excursion. This gives the opportunity to go back and correct
the system failure that allowed the excursion to take place. This is
one way refineries could better track their potential for a serious
accident.
There are supposed leading indicator programs in place now but they
lack the rigor and discipline necessary to give an accurate picture of
process safety. They also do not require public reporting which the USW
feels could help drive the industry to a higher standard. When the
public is aware of how you operate they can help pressure you to be
better.
The USW was involved in an initiative with the API recommended by
the CSB to develop leading indicators for process safety. The CSB asked
API and the USW to work together in a consensus process but the API
instituted a formal voting process where on almost every issue a dozen
or more oil companies just outvoted the union. The USW finally withdrew
when it became obvious that the standard would not go further in
identifying or improving reporting.
The USW also tried to address this issue during national contract
negotiations with the industry in 2009. They refused to make any
comprehensive improvements in health and safety language. After the
Tesoro Anacortes tragedy, the USW again approached the companies to
request to bargain on health and safety language to try and put a stop
to the seemingly never ending process safety incidents in the
refineries. We are awaiting their answer.

RIGOROUS REGULATION

The Protecting America's Workers Act (PAWA) legislation that is
currently before Congress must be passed. We hear many complaints about
OSHA not doing enough but one of the biggest problems is the limit to
what OSHA can currently do and the limited response required of a
company to OSHA citations.
OSHA has instituted a National Emphasis Program (NEP) for oil
refineries. The national program has completed 55 inspections, but only
14 of those have been settled. The other inspection citations have all
been contested by the company issued the penalty. This means that the
company is not required to take any action to abate the hazardous
situations identified that have the potential to harm workers and the
community.
The first 20 NEP inspections resulted in 456 citations being
issued, of which 344 were for PSM violations. The elements most cited
to date have been mechanical integrity, process safety information,
operating procedures and process hazard analysis.
In most cases the contest period results in citations being
negotiated away and fines reduced. OSHA does this with the union's
reluctant blessing because it is the only way to get the most serious
hazards fixed. But there is a serious downside. Where is the incentive
to fix items or even follow the rules when it costs so little or
requires no action on the company's part if they do not follow the
rules?

SAFER ALTERNATIVES

Most refiners have substituted a safer alternative for chlorine
used in water treatment, which can affect not only the workers in the
plant but also the surrounding community due to the nature of the
product. There is also a concern on the part of the union about the
reluctance of industry to explore safer alternatives to an even more
dangerous chemical, hydrogen fluoride (HF) used in the alkylation
process.
USW has a project in place to bring attention to the public about
the hazardous consequences to the surrounding communities, up to 25
miles according to some risk management plans (RMP), from a release of
this chemical.
This one process--alkylation using HF--may be the single most
dangerous process in all of American industry. A major release of HF in
a populated area could injure or kill thousands. There are safer
alternatives in solid acid catalyst, but there have been limited
commercial pilots conducted and there does not appear to be much
engagement by the refining community to try and advance this safer
process. HF is the cheapest alternative for a catalyst in alkylation.
It appears that this is a profit-driven decision, and if there is a
major release, it will have the same effect on refiners as the failure
of the Deepwater Horizon is having on offshore drilling; all companies
will be affected

DRIVE TO THE BOTTOM

Solomon numbers, something every refinery worker knows. An
arbitrary set of guidelines around number of employees, maintenance
costs and other operating factors related to the cost of a barrel of
oil processed. The goal is being in that first quartile. Problem is
that the first quartile is always moving. Consequently the other
numbers, like employees and dollars spent on maintenance is moving too,
down, to try and compete with the ``benchmark.''
This has driven employers to reduce workforces and reduce money
spent on repairs and upkeep to dangerously low numbers.
More automation added to the process is used as an excuse to reduce
the number of personnel operating a process unit. Problem being that
many RMP's submitted by the companies rely on operator intervention as
the means to control a worst case release scenario. Today, those
operating personnel are simply not there and the ones remaining have
too much area to cover, requiring them to be in more places than they
can possibly be.
The Environmental Protection Agency (EPA) is beginning an
investigative process at the Nation's refiners that will hopefully
expose this dangerous practice in identifying companies who no longer
meet the requirements of their RMP and have not taken steps to
remediate the situation. The USW looks forward to this review with the
goal of making the plants we represent safer not only for our members
but also the communities that house their friends and families.

FATIGUE

The issue of fatigued workers has come up in a number of refinery
accidents as well as other industries; most notable lately is the
airline industry. There is a simple solution to the fatigue issue in
refineries, staff all open shifts.
Units have rosters which designate a certain number of people
required to man the unit. This includes coverage for vacation periods.
Over the years hourly operators have taken on more responsibility
related to training, procedure writing, turnaround planning and new
construction projects.
While we feel that this work is important and requires a worker
that can bring first-hand knowledge, too often when these people are
pulled out of the rotation their jobs are filled with overtime, not by
replacing the person in the roster. This leads to more overtime as the
replacement workers are now in a rotation and open shifts, often time
in the schedule plus the vacation periods are all covered with overtime
from the rest of the unit operators.
This leads to excessive days of work in a row. The CSB cited
fatigue from long consecutive workdays, 12 hour shifts for 29
consecutive days, as one probable contributor in the BP Texas City
accident. In addition to the already long 12-hour shifts at most sites,
this can also mean 16 and 18 hour days to cover that open shift. This
is not acceptable. Hiring of a few more operators to fully staff units
would not only drastically reduce the fatigue concern, it would benefit
the economy by putting some more people into good family wage jobs.
To sum up; we are not seeing new causes of accidents in the
refining sector. The causes of accidents are the same time and time
again.
An increased commitment to mechanical integrity is needed, assuring
that we are inspecting the right equipment in the correct locations at
the proper times.
It is like changing oil in a car. When you have a new automobile,
you are cautious about changing the oil at 3,000 miles, when you have a
10-year-old automobile, you don't change oil at 10,000 miles; it is
more critical as the automobile ages that proper maintenance schedules
are maintained. This is the situation we are experiencing in the
refining sector.
These plants are getting older and yet over the years the ``oil
change'' in this case, unit turnarounds, are being pushed out further
and further; in some cases from 2 to 3 years to 3 to 5 years. Not the
most reliable way to treat ``an old car.''
Refining hydrocarbons is an inherently dangerous operation. Imagine
filling a coffee can about half full of gasoline, putting the lid on
and setting it on the barbecue to cook. Multiply that by 10 million.
This is essentially what is going on in an oil refinery. That is why
there are required safeguards to monitor the pressure, temperature and
flow. That is why it is critical to assure the equipment is in good
operating condition. This process can be operated in a safe manner, but
it requires a commitment on the part of the employer to know for
certain that they are doing all they can to maintain the equipment and
equip the operators to be able to do the job that is required.
The results of the OSHA NEP inspections have supported the claims
the Steelworkers have been making for a number of years and more
vocally since the 2005 BP Texas City fatalities. The companies have not
embraced process safety. They have put systems in place to document
actions that are argued as compliance.
Being able to generate a computer spreadsheet with electronic
signatures for training is not the same as providing training to assure
the employee understands and adheres to the current operating
procedure. One of the most cited compliance violations in the NEP is
around the issue of operating procedures; so if the employees are being
trained on out-of-date procedures, where is the benefit to anyone?
The intent and spirit behind the standard is not being filled.
Until there are controls in place to make it less profitable to
disobey the standard, these actions will continue.
Fines need to be increased and citations affirmed when issued so
that penalties are not reduced to so low a level it is cost-effective
to not comply. And when an accident occurs from a violation of a
standard and a worker or community member is seriously injured or
killed there needs to be jail time for the managers who allowed a
disregard of the standards. This is no different from a driver who
injures or kills someone in a car accident; neither intentionally
intended to hurt someone, but their careless actions caused or allowed
it to happen.
Only when the consequences of allowing workers to be injured or
killed on the job are severe enough will companies take serious action
to change their safety culture.

Senator Murray. Thank you very much, Mr. Nibarger.
Mr. Sawyer.

STATEMENT OF RANDALL SAWYER, DIRECTOR, HAZARDOUS MATERIALS
PROGRAMS, CONTRA COSTA COUNTY, MARTINEZ, CA

Mr. Sawyer. Chairman Murray, Ranking Member Isakson, and
honorable members of the subcommittee, thank you for inviting
me to participate in today's hearing.
My name is Randy Sawyer, and I'm the Contra Costa Health
Services Hazardous Materials Program director.
Contra Costa County is a safer place to work and live
because of the actions taken by the citizens of the county, the
county's board of supervisors, the United Steelworkers' local
unions, the Hazardous Materials Program staff, and the
regulated industry.
The safety culture of the petroleum refineries and the
chemical facilities have dramatically improved over the last 15
years. Contra Costa County is located on the San Francisco Bay
Estuary and is the home to four petroleum refineries and
several small-to-medium chemical facilities.
In the 1990s, there were many chemical accidents and
releases, some of which caused the death and injury of workers
and impacted communities, causing the pubic to seek medical
attention. As a result, two major actions were taken to address
the accidents and the concerns raised by the community and the
county's board of supervisors. First was installation of the
most integrated community warning system in the country, and
second was the implementation of the most encompassing accident
release prevention program in the country.
The Community Warning System was designed and built by the
nonprofit Contra Costa County Community Awareness and Emergency
Response Group. The Community Warning System is still
considered state-of-the-art. The project was funded by industry
and turned over to the county in June 2001.
Also, an industrial safety ordinance was adopted by the
county and the city of Richmond. The industrial safety
ordinance requirements go beyond those required by the U.S. EPA
risk management and Federal OSHA Process Safety Management
Programs. These regulations are the most stringent in the
country.
The industrial safety ordinance requires regulated sources
to consider inherently safer alternatives, perform root-cause
analysis as part of their accident investigation programs,
perform human-factors analysis, and perform a safety culture
assessment at least once every 5 years.
The Contra Costa Health Services Hazardous Materials
Program engineers have industrial experience and perform in
depth audits of the regulated sources at least once every 3
years. These audits may take five engineers 4 weeks to perform,
and may be the most thorough audits in the country.
The Community Warning System's ongoing maintenance,
training, and upgrades are paid for by fees from larger
regulated sources that handle hazardous materials. The fees are
based on the amount of hazardous materials that are handled at
the different regulated sources.
When the industrial safety ordinance was passed, fees were
based on the potential hazards the chemicals regulated source
handles, the complexity of the regulated source, and the recent
history of accidents that occurred at the regulated source.
The results of these actions is a change in the way
industry does business. In Contra Costa County, instead of just
putting safeguards in place, they're looking at how to avoid
hazards altogether. As a result, in the last 11 years there has
not been one accidental release from a regulated source that
has had a major impact on the surrounding community or caused
serious injury or death of a regulated source's worker. There
have been incidents of a less serious nature during this time.
However, there has not been a major chemical accident release
in the last 2 years.
The Community Warning System and the industrial safety
ordinance have made a dramatic, positive impact on refinery and
chemical facility safety in Contra Costa County. This has made
a safer work environment for the employees of the petroleum
refineries and the chemical plants, and a safer community for
our citizens to live.
Thank you, Chairman Murray.
[The prepared statement of Mr. Sawyer follows:]

Prepared Statement of Randall L. Sawyer

Chairman Murray, Ranking Member Isakson, and Honorable Members of
the committee, thank you for inviting me to participate in today's
hearing. My name is Randy Sawyer.
Contra Costa County is located on the San Francisco Bay estuary.
Contra Costa County is the home to four petroleum refineries and many
small to medium chemical facilities. Many accidental releases from
these facilities impacted the employees of these facilities and the
surrounding communities during the 1990s. There was an average of one
accident a year that resulted in a release or fire that caused the
death of workers or had a major impact to the community. Members of the
community, labor unions and the county's Board of Supervisors looked
for solutions to this problem. Two major changes to how the county and
industry operated occurred during this time. First was installation of
the most integrated warning system in the country and the second was
implementation of the most encompassing accidental release prevention
program in the country.

HISTORY

Major Chemical Accidents and Releases
Below is a listing of major accidents and releases that occurred in
the county during the 1990s.

May 1992 lube spent acid was released and ignited and one
worker died and another was seriously injured.
August 1993 four to eight tons of sulfur trioxide was
released that reacted with the water in the air to produce a sulfuric
acid cloud and more than 20,000 people sought medical attention.
September 1994 there was a release that occurred over 16
days that impacted the workers at the refinery and the surrounding
community where more than 1,200 people sought medical attention at a
special clinic established as a result of this release.
June 1995 there was a crude unit fire where the refinery
established alternative housing at a motel during and after the fire
for more than 100 families.
April 1996 there was a major release and fire at a
catalytic gas unit that caused millions of dollars of damage at the
facility.
May 1996 there was an accidental release of hot coke\1\
that ignited and caused millions of dollars of damage at the facility.
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\1\ Coke is a petroleum byproduct of some refineries. Coke is
similar to coal. A delayed coker is one type of equipment that is used
to produce this coke. The coke is formed in a delayed coker at high
temperatures and then cooled. When the coke is cooled it is then
dropped from the coker to a containment area below the delayed coker.
This accident occurred when the coke was dropped before it was cooled
properly, which caused a major fire.
---------------------------------------------------------------------------
January 1997 there was a runaway reaction at a
hydrocracker unit, which caused increased temperatures and pressures
and the outlet piping from the hydrocracker failed, killing one worker
and injuring 46 contractor employees.
February 1999 there was a flash fire at a crude unit where
four employees died and one was seriously injured.
March 1996 a 6-inch valve failed at a gasoline process
unit and a gas release occurred that exploded and ignited, causing
millions of dollars of damage to the facility and smoke impacting the
surrounding community.

There was also an accident that occurred at a non-chemical or
petroleum refinery in which there was a dust explosion, resulting in
the death of a worker and major damage at the facility. Since the 2000
accident, a year after the Industrial Safety Ordinance became law,
there has not been an accident of this impact at a fixed facility.

COMMUNITY WARNING SYSTEM

The county looked at how to alert and notify the surrounding
community around an industrial site if there was a release or fire from
the site that could impact the area. The original concept was to
develop local Traveler Information System radio stations, which could
broadcast local emergency information; a telephone emergency
notification system, which would call people with land lines downwind
of a release; work with a local radio station to broadcast emergency
information within Contra Costa County; and consider adding sirens in
the industrial area of the county. After the 1993 release of sulfur
trioxide, when more than 20,000 people sought medical attention, a
committee was formed including eight community members, four industrial
representatives, and three representatives from law enforcement, fire
and health services to determine the best means to alert and notify the
community during an incident. The committee visited industrial sites in
Texas and Louisiana and met with warning system consultants to
determine the best means to alert and notify the community as quickly
and thoroughly as possible. The committee developed a report that
looked at an ``All Hazard'' warning system, which they submitted to the
county's Board of Supervisors in December 1993. The county accepted the
report and created a Community Notification Advisory Board.
The Community Notification Advisory Board worked with the Contra
Costa County Community Awareness and Emergency Response (CAER) Group to
design and find funding for the final project. The Community
Notification Advisory Board developed a means for funding to be paid
for from the industries that handled acutely hazardous materials. A
project manager was hired to oversee the project to completion. The
final system includes activation computer terminals at the four
refineries and two chemical facilities. The system can be activated
with a push button from these six industrial sites that will sound
sirens in the surrounding community, notify emergency response
agencies, alert the surrounding community by broadcasting over the
National Weather Service, activate the Emergency Alert System, send
messages to the media using the California Emergency Digital
Information System and call the community within 1,000 yards of the
boundary of the community. The telephone area is modified when the wind
direction is known and people who have registered their cell phones are
called. The county has four locations where the system can activate
different scenarios throughout the county. The four locations include
the Contra Costa Health Services Hazardous Materials Programs, the
Office of the Sheriff 's Dispatch Center, the Office of the Sheriff 's
Community Warning System Offices, and the Contra Costa County Fire
Protection District Dispatch Center. There are also terminals that can
receive information at four other city Police Departments Dispatch
Centers, the California Highway Patrol Bay Area Dispatch Center, the
Bay Area Air Quality Management District's offices, and the San Ramon
Valley Fire Protection District Dispatch Center. The Contra Costa
Health Services Hazardous Materials Programs can also activate the
Community Warning System from their hazardous materials response
vehicles. This system was paid for by industry and given to the county
in June 2001. There are three other notification levels that were
developed and are detailed in the county's Hazardous Materials Incident
Notification Policy that can be found at the following web address:
http://www.cchealth.org/groups/hazmat/pdf/
incident_notification_policy.pdf. The Notification Policy describes the
Community Warning System and when and at what level to notify the
Contra Costa Health Services Hazardous Materials Programs.

ACCIDENT PREVENTION PROGRAMS

California passed one of the first accidental release prevention
programs in the United Sates in 1986, which was called the Risk
Management and Prevention Program. Contra Costa County started
implementing this program in 1989. This program was a predecessor to
the Federal Risk Management, OSHA's Process Safety Management, and the
California Accidental Release Prevention Programs. If a facility
handled some of the more toxic chemicals, which were called acutely
hazardous materials, above a threshold they were required to develop
and implement a Risk Management and Prevention Plan. In Contra Costa
County, there was a 46 percent decrease in the highest amount of
acutely hazardous materials that was handled between 1990 and 1994 to
the amount of acutely hazardous materials that were handled at the end
of 1994 if sulfuric acid was not included. There were three chemical
engineers with industrial experience who worked implementing this
program in 1992 when Contra Costa County began auditing the regulated
businesses for compliance with the law.
On January 1, 1997 California adopted the U.S. EPA's Risk
Management Program and made it more stringent by adopting some of the
requirements of the Risk Management and Prevention Program. The
regulated communities that were required to submit a Risk Management
Plan to the U.S. EPA by June 1999 were also required to submit a Risk
Management Plan to the local Unified Program Agency. There were
additional California-only regulated sources that were required to
submit Risk Management Plans 3 years after the local Unified Program
Agency requested them.
Because of the accidents that occurred in Contra Costa County
during the 1990s, the community and the county Board of Supervisors
wanted a more stringent accidental release prevention program than
either the U.S. EPA or the Federal OSHA accidental release prevention
programs. The county originally adopted what was called the ``Good
Neighbor'' ordinance. This ordinance had some major faults and some of
the petroleum refineries filed a lawsuit to stop its implementation.
While the lawsuit was going through the court system, industry, the
Paper, Allied Chemical, and Energy Labor Union, and the county worked
at finding an alternative to the ``Good Neighbor'' ordinance.

INDUSTRIAL SAFETY ORDINANCE

In December 1998, the county passed the Industrial Safety Ordinance
for facilities in the unincorporated areas of the county that became
effective on January 15, 1999. Two years later, the city of Richmond
adopted this ordinance for facilities in that city.
The Board of Supervisors passed the Industrial Safety Ordinance
because of accidents that occurred at the oil refineries and chemical
plants in Contra Costa County. The ordinance applies to oil refineries
and chemical plants with specified North American Industry
Classification System (NAICS) codes that were required to submit a Risk
Management Plan to the U.S. EPA and are program level 3 stationary
sources as defined by the California Accidental Release Prevention
(CalARP) Program. The ordinance specifies the following:

Stationary sources had 1 year to submit a Safety Plan to
Contra Costa Health Services stating how the stationary source is
complying with the ordinance, except the Human Factors portion.
Contra Costa Health Services develop a Human Factors
Guidance Document (completed January 15, 2000).
Stationary sources had 1 year to comply with the
requirements of the Human Factor Guidance Document that was developed
by Contra Costa Health Services.
For major chemical accidents or releases, the stationary
sources are required to perform a root cause analysis as part of their
incident investigations.
Contra Costa Health Services may perform its own incident
investigation, including a root cause analysis.
All of the processes at the stationary source are covered
as program level 3 processes as defined by the California Accidental
Release Prevention Program.
The stationary sources are required to consider Inherently
Safer Systems for new processes or facilities or for mitigations
resulting from a process hazard analysis.
Contra Costa Health Services will review all of the
submitted Safety Plans and audit/inspect all of the stationary source's
Safety Programs within 1 year of the receipt of the Safety Plans
(completed January 15, 2001) and every 3 years after the initial audit/
inspection.
Contra Costa Health Services will give an annual
performance review and evaluation report to the Board of Supervisors.

The 2006 amendments to the Industrial Safety Ordinance requires or
expands the following:

1. Expands the Human Factors to include maintenance and all of
Health and Safety.
2. Requires the stationary sources to perform safety culture
assessments 1 year after the Hazardous Materials Programs develops
guidance on performing a Safety Culture Assessment (Safety Culture
Assessment Guidance was completed November 9, 2009).
3. Perform Security Vulnerability Analysis.

The seven stationary sources now covered by the county's Industrial
Safety Ordinance are:

1. Air Products at the Shell Martinez Refining Company.
2. Air Products at the Tesoro Golden Eagle Refinery.
3. Shell Martinez Refining Company.
4. General Chemical West in Bay Point.
5. ConocoPhillips Rodeo Refinery.
6. Tesoro Golden Eagle Refinery.
7. Air Liquide Large Industries.

The city of Richmond industrial safety ordinance are identical to
the county's industrial safety ordinance except the city of Richmond
has not adopted the 2006 amendments. Two stationary sources are covered
by the city of Richmond's industrial safety ordinance:

1. Chevron Richmond Refinery.
2. General Chemical West in Richmond.

HUMAN FACTORS GUIDANCE

Regulated Sources are required to develop comprehensive human
factors programs to include operations, Health & Safety, and
maintenance departments. Comprehensive human factors programs must
develop methods for evaluating and resolving active failures and latent
conditions initiated within the following four dimensions or at the
interfaces between the dimensions:

Individuals (e.g., motivation, emotional states).
The activity or task being conducted, including the
procedures for the activity or task (e.g., routine, non-routine,
written, practice, formal, informal).
The physical environment (e.g., equipment) or workplace.
Management or organization (e.g., poor communication,
reward and discipline system).

The goal of the guidance document is to develop the requirements
from the Industrial Safety Ordinance to ensure that sources will
evaluate and resolve failures and conditions initiated within the
previous four dimensions. Stationary sources must identify potential
unsafe acts or active failures occurring in hazardous circumstances.
They must also assess the adequacy of their existing safeguards and
incorporate improvements if necessary. Both of these requirements can
be fulfilled by conducting traditional and possibly procedural Process
Hazard Analyses. When incidents and accidents do occur, sources must
perform incident investigations to identify the active failures and
existing latent conditions that contributed to the incident. The latent
conditions \2\ identified during the incident investigation must be
incorporated into a program developed to manage and control latent
conditions. Other programs must also be developed and implemented to
manage and control latent conditions including a Management of Change
\3\ procedure to review staffing changes, a program for developing high
quality procedures, and a program for developing a sound management
system. Minimization of latent conditions should result in fewer unsafe
acts or active failures or at least reduced risk from the unsafe acts
and active failures that do occur.
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\2\ Latent conditions are underlying conditions which can lead to
an accident when some action combines with the underlying condition.
\3\ Management of Change is a term that is used in the U.S. EPA
Risk Management and Federal OSHA's Process Safety Management Programs
referring to how a facility manages change in their processes safely
and ensuring that affected personnel are trained on the change.
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MANAGEMENT OF ORGANIZATIONAL CHANGE

The Human Factors section of the Industrial Safety Ordinance
requires stationary sources to conduct a Management of Change prior to
staffing changes for changes in permanent staffing levels/
reorganization in operations or emergency response. Employees and their
representatives shall be consulted in the Management of Change. The
intent of this chapter is to identify those requirements that
stationary sources must incorporate into their existing Management of
Change procedure to satisfy these requirements. Stationary sources may
elect to develop a separate Management of Change procedure for staffing
changes. Primarily, the guidance document details requirements for
identifying the technical basis for the organizational change and
assessing the impact of the organizational change on safety and health.
The requirements of this specified in the guidance document apply to:

Reduction in the number of positions or number of
personnel within those positions in operations, including engineers and
supervisors with direct responsibilities in operations; positions with
emergency response duties; and positions with safety responsibilities.
Substantive increase in the duties in operations,
including engineers and supervisors with direct responsibilities in
operations; positions with emergency response duties; and positions
with safety responsibilities (e.g., addition of equipment or
instrumentation which significantly adds to the complexity of the
system).
Changes in the responsibilities of positions in
operations, including engineers and supervisors with direct
responsibilities in operations; positions with emergency response
duties; and positions with safety responsibilities.

Each stationary source must develop criteria or guidance to assist
appropriate personnel in determining ``when'' a Management of Change
for an organizational change should be initiated.

ROOT CAUSE ANALYSIS

The primary purpose of an incident investigation is to prevent
reoccurrence through the identification and correction of the causal
factors of the incident. The process of determining the causal factors
seeks to answer the basic questions about an incident:

What happened?
How did it happen?
Why did it happen?

A root cause analysis is a systematic process that determines the
causal factors, i.e., the events and conditions that are necessary to
produce or contribute to an incident. The analysis develops what
happened and how it happened, and then focuses on finding the
underlying causes for why an incident happened by determining the
causal factors of an incident. There are three types of causal factors:

Direct cause;
Contributing causes; and
Root causes.

The direct cause of an incident is the immediate events or
conditions that caused the incident. The direct cause addresses what
happened. Contributing causes address how and why an incident happened.
Contributing causes are causal factors that are events or conditions
that collectively with other causes increase the likelihood of an
incident but that individually did not cause the incident. The
identification of root causes answers the question of why an incident
happened. Root causes are the causal factors that if corrected, would
prevent recurrence of the incident. Root causes can include system
deficiencies, management failures, inadequate competencies, performance
errors, omissions, non-adherence to procedures and inadequate
organizational communication. Root causes are generally, but not
always, attributable to an action or lack of action by a particular
group or individual in the line organization. Root causes can be found
at more than one level of an organization from management down through
the first-line supervisors and to the worker.
As stated above, root causes may be found at the worker level.
However, Contra Costa Health Services agrees with the guideline set
forth in the Department of Energy Accident Investigation Workbook that
a root cause of an accident can be found at the worker level if, and
only if, the following conditions are found to exist:

Management systems were in place and functioning, and
provided management with feedback on system implementation and
performance.
Management took appropriate actions based on the feedback.
Management, including supervision, could not reasonably
have been expected to take additional actions based on their
responsibilities and authorities.

INHERENTLY SAFER SYSTEMS

The intent of the Inherently Safer Systems requirements is that
each stationary source, using good engineering practices and sound
engineering judgment will incorporate the highest level of reliable
hazard reduction to the greatest extent feasible, to prevent Major
Chemical Accidents and Releases.\4\
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\4\ County Ordinance Code Section 450-8014(h) Major Chemical
Accident or Release means an incident that meets the definition of a
Level 3 or Level 2 incident in the Community Warning System incident
level classification system defined in the Hazardous Materials Incident
Notification Policy, as determined by Contra Costa Health Services; or
results in the release of a regulated substance and meets one or more
of the following criteria:

Results in one or more fatalities.
Results in greater than 24 hours of hospital treatment of
three or more persons.
Causes on- and/or off-site property damage (including
cleanup and restoration activities) initially estimated at $500,000 or
more. On-site estimates shall be performed by the regulated stationary
source. Off-site estimates shall be performed by appropriate agencies
and compiled by Health Service.
Results in a vapor cloud of flammables and/or combustibles
that are more than 5,000 pounds.

``Inherently Safer Systems (ISS) means Inherently Safer Design
Strategies as discussed in the 2008 Center for Chemical Process Safety
Publication ``Inherently Safer Chemical Processes'' and means feasible
alternative equipment, processes, materials, lay-outs, and procedures
meant to eliminate, minimize, or reduce the risk of a Major Chemical
Accident or Release by modifying a process rather than adding external
layers of protection. Examples include, but are not limited to,
substitution of materials with lower vapor pressure, lower
flammability, or lower toxicity; isolation of hazardous processes; and
use of processes which operate at lower temperatures and/or
pressures.'' \5\ ``For all covered processes, the stationary source
shall consider the use of inherently safer systems in the development
and analysis of mitigation items resulting from a process hazard
analysis and in the design and review of new processes and
facilities.'' \6\ The term inherently safer implies that the process is
safer because of its very nature and not because equipment has been
added to make it safer.\7\
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\5\ County Ordinance Code Chapter 450-8, 450-8.014(g).
\6\ County Ordinance Code Section 450-8.016(D)(3).
\7\ Process Plants: A Handbook for Safer Design, 1998, Trevor
Kletz.
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2008 Center for Chemical Process Safety Publication Inherently
Safer Chemical Processes has defined four categories for risk
reduction:

Inherent--Eliminating the hazard by using materials and
process conditions which are nonhazardous; e.g., substituting water for
a flammable solvent.
Passive--Minimizing the hazard by process and equipment
design features that reduce either the frequency or consequence of the
hazard without the active functioning of any device; e.g., the use of
equipment rated for higher pressure.
Active--Using controls, safety interlocks and emergency
shutdown systems to detect and correct process deviations; e.g., a pump
that is shut off by a high-level switch in the downstream tank when the
tank is 90 percent full. These systems are commonly referred to as
engineering controls.
Procedural--Using operating procedures, administrative
checks, emergency response and other management approaches to prevent
incidents or to minimize the effects of an incident; e.g., hot-work
procedures and permits. These approaches are commonly referred to as
administrative controls.

``Risk control strategies in the first two categories, inherent and
passive, are more reliable because they depend on the physical and
chemical properties of the system rather than the successful operation
of instruments, devices, procedures, and people.'' The inherent and
passive categories should be implemented when feasible for new
processes and facilities and used during the review of Inherently Safer
Systems for existing processes if these processes could cause incidents
that could result in a Major Chemical Accident or Release. The final
two categories do require the successful operation of instruments,
devices, procedures, and people. The concepts that are discussed in the
CCPS book, Inherently Safer Chemical Processes, A Life Cycle Approach,
for looking at active and procedural applications of risk reduction,
should be used in developing recommendations and mitigations from
process hazard analyses along with the inherent and passive categories.
This is good risk reduction. These concepts should also be used in the
review and application of human factors in the process hazard analysis
of new and existing processes.
Approaches to consider Inherently Safer Systems include the
following \8\:
---------------------------------------------------------------------------
\8\ CCPS, Inherently Safer Chemical Processes, A Life Cycle
Approach, 1996.

Minimization--Use smaller quantities of hazardous
substances (also called Intensification).
Substitute--Replace a material with a less hazardous
substance.
Moderate--Use less hazardous conditions, a less hazardous
form of a material, or facilities that minimize the impact of release
of hazardous material or energy (also called Attenuation or Limitation
of Effects).
Simplify--Design facilities that eliminate unnecessary
complexity and make operating errors less likely, and that are
forgiving of errors that are made (also called Error Tolerance).

The county's guidance on the review of Inherently Safer Systems is
broken down into seven separate sections. The first section addresses
new covered processes; the second section addresses existing processes;
the third section addresses mitigations resulting from Process Hazard
Analysis (PHA); the fourth section defines feasibility; the fifth
section addresses recommendations from process hazard analyses; the
sixth section addresses Inherently Safer System Reports; and the
seventh section contains definitions. The ISS analyses must be
performed for situations where a major chemical accident or release
could reasonably occur.\9\
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\9\ Process Hazard Analysis methods determine the risk of a
deviation or potential incident. The risk determination is based on a
combination of the hazard (severity) of the potential incident and
likelihood (probability) of an incident occurring. If the potential
hazard (severity) of consequence of a deviation meets the definition of
a Major Chemical Accident or Release of an ISS Analysis should be done
for those that could reasonably occur.
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SAFETY CULTURE ASSESSMENT

Merriam-Webster defines ``culture'' as ``the set of shared
attitudes, values, goals and practices that characterizes an
institution or organization.'' Safety culture is a measure of the
importance that individuals and organizations exhibit towards working
safely. It is the summation of attitudes and actions workers do at 2
a.m. on a Monday morning when no one is watching. An organization can
influence employees to embrace positive shared safety values with
consistent policies and practices and by leading through example.
History is filled with tragic life-altering and life-ending events
that can be traced back to phrases like, ``we've been doing it this way
for years'' or ``this way is good enough.'' This guidance document was
prepared to help stationary sources identify pervasive attitudes or
beliefs regarding risk tolerance in the work place. There is a
correlation between improving safety culture and decreasing the number
and severity of accidents.
Although stationary sources subject to Contra Costa County's or the
city of Richmond's Industrial Safety Ordinances already frequently
evaluate situations for ``hidden'' problems or latent conditions,
safety culture is subtler and even more difficult to assess. A Safety
Culture Assessment will enable a facility to understand where they are
in terms of risk acceptance. Additional benefits of performing a Safety
Culture Assessment include:

Identify positive as well as negative aspects of the
onsite health and safety program.
Assist in identifying opportunities for improving health
and safety.
Another tool to improve facility personnel's awareness and
participation in health and safety.
Identify perception gaps between managers, supervisors,
and the workforce.
Assist to demonstrate management's commitment to safety by
performing the assessment and visibly addressing the results.

Every company has a culture. Sometimes certain aspects of safety
culture are more evident (e.g., using the proper personal protective
equipment) and sometimes it is more of an undercurrent of how things
are done (e.g., recommended hearing protection is absent when the
``boss'' is not around). There will always be some element of risk in
the workplace and in the work that is performed, but being cavalier
about safety could lead to major problems beyond serious personal
injury. Large facilities may have different cultures across
departments, process units or even between shifts in the same process
unit. Finding whether these differences exist is one of the challenges
of the assessment. In general, the larger and more broad the population
being assessed, the less evident these differences in perception may
appear. For example, 10 similar perceptions from one workgroup may not
be noticeable in a facility-wide survey of hundreds; whereas these same
10 perceptions out of a total work group size of 30 would stand out.
Depending on the size of the facility, the following work groups should
be assessed: management, supervisors, operators, maintenance,
engineering, health and safety personnel and resident and applicable
transient contractors. To better understand potential differences in
behavior and develop improvement strategies, facilities should consider
identifying sub-work groups for the assessment between processing
areas, shifts, crews, maintenance crafts or levels of management.
Performing an initial Safety Culture Assessment will give a company
a baseline from which they can compare future assessments. Any Safety
Culture Assessment represents only a snapshot in time. Since the safety
culture of a company will change over time, only by performing multiple
assessments can a company discover if the steps that were taken to
improve safety are actually improving. If not, the company may need to
adjust and focus future improvement topics.
The primary goal of a Safety Culture Assessment is to assess
individual and group values towards safety and risk tolerance. An
ultimate goal for each facility should be to assess values toward
safety and risk tolerance associated with each work group. One
objective of the Safety Culture Assessment is to gauge the commitment
and effectiveness of an organization's health and safety management
program by evaluating attitudes, perceptions, competencies and patterns
of behavior. Once these issues are known, a facility can direct the
design, execution, evaluation and continuous improvement in the work
environment to affect changes to safety-related behaviors and attitudes
that ultimately minimize accidents.
More information on Contra Costa County's Safety Ordinance,
including the Industrial Safety Ordinance Guidance Document can be
found at the following Web page: http://www.cchealth.org/groups/hazmat/
industrial_safety_ordinance.php.

AUDITING REGULATED STATIONARY SOURCES

Contra Costa Health Services has six engineers with industrial
experience dedicated to the California Accidental Release Prevention
Program and the Industrial Safety Ordinance. When an audit occurs at a
petroleum refinery, it can take five engineers 4 weeks to complete the
audit. The audit includes a review of the policies and procedures
establishing the prevention elements that are required, review of the
documents ensuring that the policies and procedures are being
implemented as designed, interviewing operators and maintenance
personnel to see if what is on paper is what is occurring in the
plants, and to perform field evaluations. The purpose of the audits is
to ensure that the programs in place meet the requirements of the
California Accidental Release Prevention Program and the Industrial
Safety Ordinance.
The audit includes 430 questions, the findings from the audit team,
determination if the facility is in compliance with the requirement,
actions to come into compliance, if out of compliance, proposed remedy,
and a schedule to meet compliance. The proposed remedies and schedule
are developed by the regulated stationary source and reviewed by the
lead auditor. The regulated stationary source has 90 days to come up
with a plan of action that is agreed upon by the auditing team. Follow-
up on the actions being taken by the regulated source is reviewed
during the next audit or during unannounced inspections. Below is an
example of one of the questions with the proposed remedies from the
regulated source.

RESULTS

As mentioned earlier there has been no Major Chemical Accident or
Release Severity Level 3 that has occurred at a regulated stationary
source since 1999. Contra Costa Health Services staff has analyzed the
Major Chemical Accidents or Releases (MCAR) that have occurred since
the implementation of the Industrial Safety Ordinance. The analysis
includes the number of MCARs and the severity of the MCARs. Three
different levels of severity were assigned:

Severity Level III--A fatality, serious injuries, or major
onsite and/or offsite damage occurred.\10\
---------------------------------------------------------------------------
\10\ All the accidents that were listed during the 1990s were a
Severity Level III MCAR.
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Severity Level II--An impact to the community occurred, or
if the situation was slightly different the accident may have been
considered major, or there is a recurring type of incident at that
facility.
Severity Level I--A release where there was no or minor
injuries, the release had no or slight impact to the community, or
there was no or minor onsite damage.

Below is a chart showing the number of MCARs from January 1999
through December 31, 2009 for all stationary sources in Contra Costa
County, the MCARs that have occurred at the county's Industrial Safety
Ordinance stationary sources, and a chart showing the MCARs that have
occurred at the county and the city of Richmond's Industrial Safety
Ordinance stationary sources. The charts also show the number of
Severity I, II, and III MCARs for this period. NOTE: The charts do not
include any transportation MCARs that have occurred.

A weighted score has been developed giving more weight to the
higher severity incidents and a lower weight to the less severe
incidents. The purpose is to develop a metric of the overall process
safety of facilities in the county, the facilities that are covered by
the county and the city of Richmond Industrial Safety Ordinances, and
the facilities that are covered by the county's Industrial Safety
Ordinance. A Severity Level III incident is given 9 points, Severity
Level II 3 points, and Severity Level I 1 point. Below is a graph of
this weighted scoring.

FEES

The maintenance, operations, training, and the continuous
improvement of the Community Warning System is paid for by fees from
regulated businesses that handle more than 500,000 pounds of hazardous
materials. The fee is proportional to the cubic root of the amount of
hazardous materials handled by the regulated business.
The Industrial Safety Ordinance is paid for by fees based on the
potential hazard that the facility poses. The potential hazard is
assessed taking into consideration the following factors:

The toxicity or flammability of the chemical.
The quantity of the chemical stored in the largest vessel.
The distance the largest vessel is from the fence-line of
the regulated business.
The volatility of the chemical.

An equation is used to determine the chemical potential hazard
factor using the above four factors. Each chemical potential hazard
factor is calculated and then all of the chemical potential hazard
factors are added together to get an overall factor for the chemicals
handled by the regulated business. This factor is then multiplied by a
factor based on the complexity of the regulated business and a factor
based on the recent accidental history of the regulated business to
give the regulated business potential hazard factor. The percentage of
the regulated business potential hazard factor to the sum of all the
regulated businesses potential hazard factors is multiplied by the
total overall expenses to implement the Industrial Safety Ordinance to
determine the fee for that regulated business.

CONCLUSIONS

The major chemical accidents and releases that occurred during the
1990s and the outcry from the community caused the county Board of
Supervisors to adopt the Industrial Safety Ordinance and industry to
pay for the Community Warning System. Today, there is a marked change
in the way the petroleum refineries and chemicals operate. What was
acceptable in the 1990s is not acceptable today. The industry is now
held to a higher standard than anywhere else in the country through the
county's Industrial Safety Ordinance and the way that alert and
notifications were required to be performed through the Community
Warning System. The thorough auditing and the follow-up by the
Accidental Release Prevention Program Engineers ensure that the high
standard is being met by the regulated sources. The result is the
number and severity of accidents that have occurred within the county
have declined to almost nothing.

Senator Murray. Mr. Drevna.

STATEMENT OF CHARLES DREVNA, PRESIDENT, NATIONAL PETROCHEMICAL
& REFINERS ASSOCIATION, WASHINGTON, DC

Mr. Drevna. Good morning, Chairman Murray, Ranking Member
Isakson, and Senator Franken.
I'm Charlie Drevna. I'm president of NPRA, the National
Petrochemical & Refiners Association, and I thank you for
giving me the opportunity to appear before you this morning.
NPRA represents more than 450 businesses, including
virtually all petroleum refiners and petrochemical
manufacturers.
To paraphrase an advertising slogan, our members don't
produce the crude oil; they make the crude oil better by
turning it into useful products.
Like all Americans, we are deeply saddened at the tragic
loss of life and terrible environmental damage caused by the
leak from the Deepwater Horizon disaster in the Gulf of Mexico.
Naturally, our thoughts and prayers go out to those who died,
and the families, and to everyone suffering.
But, the issue of safety involving drilling rigs is not
something I can speak to. It's outside the scope of the
refining and petrochemical manufacturing activities that we, at
NPRA, represent. Rather, I'm here to talk about safety in
facilities operated by NPRA members.
Let me begin by saying that absolutely nothing--and I
underscore the point--absolutely nothing is more important to
us than workplace safety. That's because nothing is more
precious than the good health and lives of our valued employees
and contractors. We have zero tolerance for injuries and
fatalities. Besides being the right thing to do, promoting
safety makes good business sense. It's far more expensive to
deal with the aftermath of workplace incidents than to prevent
them.
Last month, NPRA held a national safety conference. Our
guest speaker was Jordan Barab, as the previous witness is. He
acknowledged the good work our members are doing, but he also
said, ``We must do a lot more.'' And we wholeheartedly agree.
We believe the best way to do more to enhance workplace
safety is to work in cooperation, not confrontation, with all
stakeholders--OSHA, Chemical Safety Board, labor unions,
contractors, and Congress. Improving safety shouldn't be a
battle between adversaries or something negotiated by opposing
sides in labor contracts. It should be a campaign of allies. We
will not use OSHA and the medium as forums to negotiate
contracts with labor unions, however. We all want safe
workplaces, but we won't create them by issuing dueling press
releases or using inflammatory rhetoric or denouncing each
other on TV. These theatrics just make achieving our common
goal harder. We need actions to speak louder than words.
In my written testimony, I listed a series of actions that
NPRA members have taken in the past 5 years to reduce workplace
hazards. Because of these actions, the industry has protected
employees and contractors better than we have before. It
doesn't say that we're done. We'll never be done. But, we're
better than we were.
I would like to point out here right now that NPRA has been
collecting occupational illness and injury rates for the last
10 years, for both permanent and contract employees. And the
graph in my testimony indicates such, and it also indicates
that the combined rate for contractors and employees is less
than the single rate for just permanent employees.
But, again, we are continually attempting to improve
personnel and process safety. Personnel safety is involved with
protecting the safety, health, and welfare of the people who
work in refineries and petrochemical plants. Process safety is
equally important. It involves making sure that a facility
operates properly. That means maintaining the equipment in a
way that will avoid chemical releases and other incidents that
could harm people, the facility itself, or the surrounding
area.
We're working closely with OSHA. Many members of NPRA are
enthusiastic participants in OSHA's Voluntary Protection
Program known as VPP. VPP promotes and recognizes effective
workplace safety and health management. Labor, management, and
OSHA established a cooperative relationship at sites that have
implemented these strong safety and health systems.
We agree with OSHA on many things. OSHA tells us inspectors
need to focus on facilities and companies with the most serious
problems, and not try to find every minor violation at every
facility. We endorse this commonsense approach. We need OSHA to
extend a helping hand to our members to assist them in
complying with regulations and creating safer workplaces.
However, we do believe that OSHA should use its enforcement
arm against operators of refineries and petrochemical plants
that commit serious violations and aren't taking steps to
comply with safety regulations. If there is a bad actor out
there, government should act against them. But, it's not
accurate to paint everyone in the refining and petrochemical
industry with a broad brush, condemning all because of the
actions of a very few. It's not accurate to say there's a
systemic safety problem at refineries and petrochemical plants
around the Nation.
To bring all sides together, we're planning a workshop,
focusing on refinery safety. We'll conduct this, with
participation from OSHA and labor and other stakeholders, this
fall. I invite the members of the committee and their staffs to
attend.
Safety is the job of everyone in the refining and
petrochemical manufacturing, from corporate CEOs, to managers,
to the workers that keep the refineries and plants running. Our
members are instilling this belief in everyone at their
facilities so that they can build a strong culture of safety
that focuses on both personnel and safety process. This is a
culture where each person is adequately trained, follows proper
procedures, reports problems promptly, and takes all necessary
precautions.
Working together as stakeholders, to share the knowledge
and learn from each other, NPRA and our members are committed
to creating this culture of safety and the safest workplaces
possible. We invite you to join us.
Thank you for your time.
[The prepared statement of Mr. Drevna follows:]

Prepared Statement of Charlie Drevna

I. INTRODUCTION

Good morning, Chairman Murray, Ranking Member Isakson, and members
of the subcommittee. I'm Charlie Drevna, and I serve as president of
NPRA, the National Petrochemical & Refiners Association. I appreciate
the opportunity to testify at today's subcommittee hearing dealing with
process safety management in the oil and gas industry.
I know that in the public mind, the oil industry is a collection of
giant companies that do everything--explore and drill for oil, turn it
into fuel and other useful products, and own gasoline stations where
you fill up your car or truck. But that's not the reality. While some
companies both get the oil out of the ground and refine it, many more
operate only refineries or petrochemical plants. And nearly 95 percent
of gasoline and diesel fuel is sold today by independent owners and
operators of service stations and convenience stores that buy fuel from
refineries or other distributors.
NPRA represents more than 450 businesses, including virtually all
U.S. refiners and petrochemical manufacturers, their suppliers and
vendors. Our member businesses provide the transportation fuels that
keep Americans moving on the ground and in the air--safely, reliably
and cost-effectively. Our members also supply families with a wide
variety of products used daily in their homes and at work, including
fuels, lubricants, and chemicals that serve as building blocks for
everything from plastics to clothing, life-saving medicines and
computers.
NPRA represents what we call ``downstream'' activities--we don't
focus on getting oil out of the ground or offshore, we focus on turning
it into useful products. Or to paraphrase an advertising slogan: We
don't produce the oil, we make the oil you buy better. The oil that
comes directly out of the wellhead is useless until it's refined into a
fuel or a petrochemical, and that's the important work our members do.
While some NPRA members also explore and drill for oil and natural
gas, we don't represent that part of the business--what we call
``upstream.'' So even though--like all Americans--we're following news
reports and are saddened at the tragic loss of life and terrible
environmental damage caused by the leak from the Deepwater Horizon in
the Gulf of Mexico, it's not something I can speak to because it's
outside the scope of the activities NPRA represents. Our thoughts and
prayers go out to those who have died and to the many people who are
suffering in the Gulf. These fine people are our friends and neighbors
too, given the refining and petrochemical industries' significant
presence in the region. We hope the leak can be stopped as quickly as
possible, and that cleanup activities and safety improvements can
proceed swiftly and effectively.

II. SAFETY IS PARAMOUNT

I'm here today to talk about safety in petroleum refineries and
petrochemical manufacturing plants operated by NPRA members. Let me
begin by saying as clearly and emphatically as I can that nothing--
absolutely nothing--is more important to us all than workplace safety.
Nothing is more precious than the good health and the lives of our
employees and contractors. They are the institutional knowledge of our
industry and these men and women are not just statistics or assets to
us. They are our co-workers, friends and neighbors. Their children go
to the same schools as the children of management, their families go to
the same churches, they belong to some of the same clubs and sports
teams.
Despite media characterizations and the belief of some that our
industry values ``production over protections,'' the financial and
business costs of workplace incidents are so heavy that it makes good
business sense to keep our facilities as safe and reliable as possible.
There is simply no situation where lax safety procedures will create
any sort of benefit.
Just last month, NPRA held a 2-day National Safety Conference in
San Antonio and approximately 400 safety specialists from our member
refineries, petrochemical plants and contractors attended. Safety is
not a new issue for us. We've been holding these national conferences
annually since 1991, and regional conferences were held in prior years.
This year's conference was very informative and helped everyone there
learn important lessons from past incidents and best practices on how
to improve safety at their facilities.
Because we take the subject of safety so seriously, we invited
Jordan Barab, the Deputy Assistant Secretary of Labor for Occupational
Safety and Health, to speak to our safety conference this year. Mr.
Barab acknowledged the work our members are doing in safety, saying:
``OSHA recognizes that you are America's quiet heroes and deserve our
thanks.'' But he also made clear that more must be done. Our response:
We agree wholeheartedly with both assessments. And we believe that the
best way to improve safety in our industry is to work in cooperation--
rather than confrontation--with all stakeholders: OSHA, the Chemical
Safety Board, labor unions, contractors and Congress. We all seek the
same goal--safe workplaces, where every worker goes home safe and sound
every day. Issuing dueling press releases, denouncing each other for
the TV cameras and in expensive ads, and using inflammatory rhetoric to
score political points won't accomplish our common goals and, if
anything, will only serve to make the task even harder. Instead of
applying our energy to escalate the rhetoric of charge and
countercharge involving safety, we must join forces to improve the
reality of safety.
This is why we are planning a workshop focusing on refinery safety
that we'll conduct with significant input from OSHA and labor this
fall. The workshop is the outgrowth of a meeting that American
Petroleum Institute (API) President and CEO Jack Gerard and I had with
Assistant Secretary of Labor for OSHA Dr. David Michaels and many of
his senior staff. This workshop will give all stakeholders in our
industries an opportunity to build on our safety conference and share
knowledge with each other to make refineries and petrochemical plants
safer. It's important to understand that while anti-trust laws prevent
competing companies from sharing a great deal of business information,
there are no restrictions on sharing information about safety. NPRA and
our safety conferences are important vehicles that help our members
learn about things that go wrong and things that go right in each
other's facilities, so they can all engage in continuous improvement of
their safety efforts. Our members don't compete with each other on
safety--they stand together.
There is no denying the fact that there are inherent risks involved
in the refining and petrochemical manufacturing process. Petroleum is
an explosive and flammable substance, and converting it into useful
fuels and chemicals requires extremely volatile materials to be
subjected to high pressure and high temperatures, using complex
processes and equipment. Despite this, our rate of workplace-related
incidents is historically extremely low, and we protect our workers
through process and personnel safety programs better than almost any
other manufacturing industry in the United States.
The chart below illustrates our record in personnel safety.
Personnel safety involves making sure people working in refineries and
petrochemical plants follow proper operating and safety procedures,
such as being alert to everything going on around them to avoid
hazards, wearing proper safety equipment, and using proper lifting
techniques to avoid injuries. Process safety, which is required under
OSHA regulations, is just as important. It involves making sure that a
facility operates properly and handles hazardous substances in a manner
that will avoid chemical releases and other incidents that could harm
people or cause damage to equipment, the facility itself, or the
surrounding area. Industry realizes that process safety incidents have
the potential to cause significant injuries and fatalities. For this
reason. we have developed a standard for measuring the health of a
process safety management program. ANSI API RP 754. NPRA will formally
begin collecting applicable 2010 data in January 2011.

I want to emphasize that while safety has been improving in the
industry, we want to ensure we stay on this path, which is why we feel
the status quo--however positive the numbers may indicate--is never
acceptable. We take all incidents seriously and conduct conferences and
workshops like those previously mentioned to ensure our industry is
continuously focusing on and improving safety.

III. IMPROVEMENTS MADE

To paraphrase another advertising slogan, this is not your father's
refining and petrochemical industry. There has been significant
progress over the years as facilities continually enhance their safety
programs and procedures; the result is fewer and fewer people being
injured at refineries and petrochemical plants. NPRA and API have
worked together on several new industry-recommended practices that will
enhance workplace safety. There are approximately 30 safety and fire
protection standards and recommended practices maintained by API that
refining companies voluntarily comply with in order to promote a safe
working environment. In addition to refining industry standards,
companies also comply with standards established by: the American
National Standards Institute (ANSI); American Society of Mechanical
Engineers; the Instrumentation, Systems, and Automation Society; and
the National Fire Protection Association. Many of these standards are
considered recognized and generally available good engineering
practices and are enforced by OSHA's Process Safety Management
Standard. NPRA has adopted the requirements of the ANSI-approved API
Recommended Practice 754, Process Safety Performance Indicators for the
Petroleum and Petrochemical Industries. We will begin collecting
process safety event data and report them publicly on an annual basis
as required by the standard.
Let me give you just a few examples of safety progress we've made
in the past 5 years, since the tragedy that usually comes up when
refinery safety is discussed--the explosions and fire that killed 15
workers and injured many more at the BP refinery in Texas City. Our
members have worked hard to learn from that terrible incident to
improve safety at their facilities. In the past 5 years:

There have been improvements in facility siting of
permanent and temporary structures at refineries to locate them in safe
places, as the improved facility siting standards are being
implemented. More buildings are now blast-resistant. Exclusion zones
are enforced to keep all non-essential workers away from certain
locations during start-ups, shut-downs and disruptions--the most
hazardous times. Operating procedures, worker training and safety
instrumentation at refineries have all been reevaluated and improved to
ensure workplace safety. Worker fatigue standards are being implemented
to ensure that workers are alert on the job. Training and monitoring
are focused on both leading and lagging indicators. Leading indicators
are warning signs of problems that may arise in the future. Lagging
indicators are lessons to be learned from things that went wrong in the
past, to prevent a repetition of past problems. All events are counted
and investigated, no matter the size.
There is a constant emphasis on the equal balance of both
personnel and process safety. The objective of process safety is to
identify problem areas and correct them before they lead to safety
incidents. Our members realize that preventive steps make sense because
they reduce workplace-related incidents and improve the reliability of
the facility. Individual companies did not wait for an industry
standard on process safety metrics. They have already developed and
implemented site-specific and company-specific process safety metrics
that get regularly reviewed and shared with management, including
company officers and directors. There is now an increased focus on
common process safety metrics, specifically leading metrics. This
includes standardization of metrics that will allow industry to
benchmark and set performance goals. These metrics will significantly
impact the methods used to measure process safety performance, with the
expectation that they will advance improvements in process safety. Our
members realize that OSHA's standard measurement of occupational injury
and illness measures personnel safety, and that an additional
measurement is needed for process safety. NPRA will begin collecting
and analyzing process safety metrics next year, in a manner similar to
the way we collect and analyze statistics on worker injury and illness.
Process safety management and plant reliability have been
integrated and improved because management has a greater understanding
of the correlation between the two. This has increased the preventive
and predictive maintenance at facilities to keep problems from arising
and increased upper management's knowledge and awareness of process
safety management and metrics.

Although our safety record compares favorably with many industries,
and our rate of workplace injuries at refineries and petrochemical
plants is lower than that in many industries, we measure success by
looking in the mirror rather than by comparing ourselves with others.
We firmly believe that there is no tolerable level of injury. There is
no tolerable level of workplace-related incidents. Our goal is to
reduce these to zero, and we will do everything possible to reach that
goal.
Our members go above and beyond what is required by OSHA and other
government regulations, and are always reviewing new techniques to
improve both personnel and process safety. They have invested and will
continue to invest heavily to make refining and petrochemical
manufacturing processes safer. They work to manage the complex risks
inherent in their production activities by quick recognition and
mitigation of hazards. In addition, several layers of protection are in
place to prevent employee injuries when an incident occurs. Refining
and petrochemical plants record and learn from all incidents big and
small, and implement necessary changes in procedure in an effort to
prevent problems from reoccurring. For large incidents, our industries
don't wait for the Chemical Safety Board or OSHA to publish a formal
report. Once the cause of an incident is suggested, company experts
investigate their own processes and share findings with the industry.
In addition, many NPRA members are enthusiastic participants in
OSHA's Voluntary Protection Program (VPP), which advances worker
protection by promoting and recognizing effective workplace safety and
health management. Under VPP, management, labor and OSHA establish a
cooperative relationship at a worksite that has implemented strong
safety and health systems. In order to qualify for VPP status, sites
must meet or exceed all OSHA regulatory standards and submit to an OSHA
review of their programs. VPP sites are not exempt from OSHA's Refinery
Process Safety National Emphasis Program and must submit annual process
safety evaluations with a 3-year OSHA onsite follow-up. This process
gives OSHA the opportunity to continually maintain a presence at these
sites as opposed to a one-time enforcement contact, which is the case
with non-VPP sites. NPRA members currently represent 95 VPP facilities,
27 VPP contractor sites and 49 union VPP sites. The success of VPP is
based on its dynamic approach to encourage safety and health beyond
targeted goals of traditional enforcement. The VPP process emphasizes
continual identification and elimination of hazards at worksites.
Participants in VPP have enjoyed significant worker injury rate
reductions--a 50 percent difference between VPP and non-VPP sites is
not uncommon in our experience. Few programs have achieved such unified
support from workers, businesses and government.
The VPP sites also assist in training OSHA compliance officers in
refinery safety and process safety management. We would like to see the
VPP maintained in its current state as a continuous collaborative
improvement process to drive safety efforts. It should not be reduced,
as has been proposed.
NPRA strongly encourages OSHA to continue its collaborative
approach to workplace safety. Safety and health in the workplace
requires the careful combination of both enforcement methods and
cooperative programs. VPP adds value to workplace safety and health by
encouraging worksites to go beyond compliance. In January of this year,
I sent a letter (Attachment I) to OSHA Assistant Secretary Dr. David
Michaels outlining the benefits of VPP and our concerns with the
program's decreased funding and personnel allocation. Dr. Michaels
responded (Attachment II) to NPRA saying: ``[T]he agency will focus its
scarce resources on employers that need the most help and attention.''
In addition, NPRA reiterated the positive contribution VPP and other
cooperative programs have on workplace safety in written comments
(Attachment III) for OSHA Listens: Occupational Safety and Health
Administration Stakeholder Meeting (OSHA Docket No. OSHA-2010-0004).
Programs like VPP and other outreach and education efforts are
essential in maintaining a safe workplace.

IV. TARGETING THE MOST SERIOUS PROBLEMS

In his speech to our National Safety Conference, Jordan Barab said:
``OSHA has a responsibility to work closely with those facilities
having the most frequent and serious safety violations, concentrating
its limited resources on facilities where they are most needed.'' Mr.
Barab went on to tell NPRA members that OSHA officials need to ``find a
better way to target problem refineries so that we aren't wasting our
time or your time inspecting refineries that don't have major
problems.'' And he said, speaking for OSHA: ``We want to work with you
and other stakeholders like unions and experts to find a better way to
target problem refineries for more attention.'' NPRA wholeheartedly
endorses this common-sense approach, which is long overdue.
It is impossible and unnecessary to have OSHA inspectors stationed
at every workplace in America, looking over every worker's shoulder,
every hour of the day to enforce workplace safety. These overworked and
dedicated inspectors can't be in more than one place at a time. In
trying to make everything a priority, nothing becomes a priority.
Instead, as Mr. Barab told us, OSHA's attention needs to be focused on
facilities and companies with the most serious problems. Rather than
treating all safety violations that inspectors find equally--from the
most minor to something that could cause a deadly explosion--we need to
focus the most resources on correcting violations that pose the
greatest safety risks. In the same way, when looking at the number of
injuries at a facility we need to focus on injuries that result in
workers missing time on the job, not equating them statistically with
minor injuries that result in no lost time.
Looking at safety and injuries in this way shows that NPRA members
have made tremendous strides in recent years to improve safety at their
facilities, and are working every day to make further improvements. It
discredits the view of some that there is a systemic safety problem at
refineries and petrochemical plants in the United States. This view is
simply not accurate. Are we perfect? No. But is a perfect safety record
our goal? Yes. Will we continuously work towards that goal to the best
of our ability? Yes. We need OSHA to extend a helping hand to our
members to assist them in complying with regulations and creating safer
workplaces. We need other Federal agencies and unions to do the same.
Improving safety should not be a battle between adversaries, but a
joint campaign of allies. And the best measure of safety is not how
many new standards have been issued, or how many citations have been
written, but to what extent process safety incidents, illnesses,
injuries and fatalities have been reduced. We will not be satisfied
until workplace deaths have been reduced to zero.
Should OSHA use its enforcement arm against operators of refineries
and petrochemical plants that commit serious violations and aren't
taking necessary steps to comply with safety regulations? Absolutely.
If there are bad actors, government should be acting against them. But
in all fairness, it is not accurate to paint everyone in the domestic
petroleum refining and petrochemical business--or any business for that
matter--with a broad brush, condemning all because of the actions of a
very few.

V. CONCLUSION

When he spoke to our National Safety Conference, Jordan Barab
discussed what he called ``the need to build a strong corporate safety
culture,'' which he defined as a way of doing things that incorporates
safety into all activities. ``Organizational safety culture must come
from the top,'' he told us. We agree. Our members are committed to
fostering a culture of safety that comes from the very top and includes
every single employee and contractor. This is a culture where everyone
can honestly say ``the buck stops here'' when it comes to safety. A
culture where everyone pays attention to training, follows proper
procedures, reports problems promptly and takes all necessary
precautions to avert safety incidents. They do this because they
understand this is the best way to protect themselves, their
colleagues, and the facilities that provide them with jobs. This
behavior coming from within our member facilities does more than
anything else to promote safety.
Along these lines, we also agree with--and have long been
following--the advice Mr. Barab gave us when he told our members:

``And watch for the small things--the tip of the iceberg
principle. The few problems you do see, particularly at higher
management levels, are probably a fraction of the problems you
don't see below the surface. Follow up on close calls and
unusual circumstances; these can point to underlying problems
that, if not addressed, could lead to tragedy.''

NPRA and our members place the highest possible emphasis on the
safety of refining and petrochemical manufacturing operations and go to
great lengths to make facilities as safe as possible for the sake of
those who work there and for the neighbors who live and work in the
surrounding communities. We focus on management systems to drive and
continually improve process safety, work practices and reliability. We
emphasize the training of workers and the prevention of safety
incidents. Our members learn as much as possible from any safety
incidents that pose a risk to human health or the environment, and then
use that knowledge to make their operations safer.
Safety isn't the job of just the operators of our member
facilities, or just the Federal Government, or just the unions, or just
individual workers. It's the job of us all. Working together to share
our knowledge and learning from each other about things that go right
and things that go wrong, struggling together in the face of inevitable
setbacks, and always maintaining a spirit of partnership, we can build
on what has been accomplished and make our workplaces even safer. I
pledge to you today that this is the course to which NPRA and our
members are committed, and I ask you and all our other stakeholders to
join us.

Senator Murray. Thank you all, for your testimony.
I have a number of questions. Mr. Nibarger, before I start,
I wanted to clarify--I thought I heard you say that trailers
have been replaced by tents in the blast zone.
Mr. Nibarger. That's correct. One of the recommendations
from the Chemical Safety Board report was that API write a new
standard on safe siting in refineries. And they did that. But,
in excluding tents from being in predicted blast zones, they
specifically exempted tents.
Senator Murray. So, trailers, that were unsafe, are being
replaced by tents?
Mr. Nibarger. That's correct.
Senator Murray. Mr. Barab, is that OK with OSHA?
Mr. Barab. That is the result of an API recommendation. I
don't think that we've actually addressed that issue yet. We
just recently heard about it from the steelworkers, but I think
it's certainly something we need to look into, because I don't
think it would--sounds like it wouldn't be necessarily in
compliance with our Process Safety Management standard.
Senator Murray. Mr. Drevna, is that really----
Mr. Drevna. Madam Chair, I don't think that's an accurate
statement. There is a standard process for tents. The question
is where, how far outside the blast zone. I disagree with the
assertion, completely.
Senator Murray. Mr. Nibarger.
Mr. Nibarger. Yes, there are tents located in blast zones.
Senator Murray. On refinery sites. This is post-BP Texas--
--
Mr. Nibarger. Yes.
Senator Murray [continuing]. Blast, where a number of the
victims were in trailers. It was considered unsafe, obviously.
And, Mr. Drevna, the recommendation from API is that tents are
OK? I just find that astounding.
Mr. Drevna. Ma'am, I would appreciate the opportunity to
respond in detail to that.
Senator Murray. OK.
Mr. Drevna. But, in written statements.
Senator Murray. Absolutely. Our committee will look forward
to getting that.
And, Mr. Nibarger, if you can give us information on that.
Mr. Barab, can you shed any more light on that, or are you
just----
Mr. Barab. No--I'm sorry, no, but I'm sure if we get some
more specific information on that, we'd be glad to look into
it.
Senator Murray. OK.
Mr. Nibarger, I understand you were on the scene, on April
2, at the Anacortes fires, shortly after it occurred in
Washington State. And you've been designated to respond to the
needs of the families. I wanted to ask you, How are the
families doing?
Mr. Nibarger. Well, actually, I just do the health and
safety side. We have another department in the Health and
Safety Department that responds to the family needs. But, that
is my former local union, and so I've been in pretty constant
contact with them. And the families, as you can imagine, are
devastated. They have received a tremendous amount of support
from the community, and they are doing as well as can be
expected.
Senator Murray. OK. Well, if you can pass on my wishes to
them, too. I know it's a community that very much supports the
refinery; it is the lifeblood of that community.
Mr. Nibarger. Yes.
Senator Murray. And they've now had two tremendous
accidents. It's been very, very difficult for them.
I did want to ask you a question about the awards. And I
understand that, in the Tesoro refinery, back in 2009,
Washington got two safety awards--a gold award and a merit
award--from the National Petrochemical & Refiners Association.
And I've also heard that, in 2009, the U.S. Minerals Management
Service issued Transocean a safety award for excellence for,
``outstanding drilling operations in 2009.'' And on April 20,
the day the Deepwater Horizon Explosion occurred, there were
actually a group of BP executives there to celebrate some kind
of safety milestone.
Do you find anything odd about getting safety awards at the
same time as these tragic accidents are occurring?
Mr. Nibarger. Well, I sure do. But, as has been alluded to
earlier, these awards are based on OII rates--occupational,
injury, and incident rates. And, typically, the refinery rates
are low. The OSHA 300 rate at my refinery was about a .5, which
was exceptionally low. And then at 6 p.m., we killed six
people. So, that OSHA personal injury--slip, trips, falls--is
not an indicator of process safety in these facilities.
Senator Murray. OK. You talked quite a bit about the
maintenance backlogs, they're not doing maintenance quickly
enough. And you talked about having a car that you check the
oil more often.
In your opinion, is that because they want you to keep
operating, keep the production numbers up, and delays in
maintenance cost money?
Mr. Nibarger. I would assume that that is their motivation.
We have seen the unit turnarounds, which, in some cases, were
done every 2 and 3 years, are now being pushed out to 3- and 5-
year periods. Members tell us that the scope on those is being
cut as the deadline for the end of the turnaround comes; items
start getting put off and delayed until later. BP Texas City,
for example, the tower that overfilled had a request in for the
turnaround to replace the site glasses, which are what they
sound like, glasses that you can follow at a corresponding
level in the tower. They changed the taps for those site
glasses, but put the old site glasses back on and said, ``After
we get up, we'll put new ones on.'' So, the operators weren't
able to verify the level in that tower.
Senator Murray. So, workers are at work when maintenance
hasn't been completed that is required to be completed.
Mr. Nibarger. That's correct.
Senator Murray. And, Mr. Barab, there's no oversight on
this, if maintenance isn't occurring in the timeframe that it's
supposed to for----
Mr. Barab. No. Mechanical integrity is a key part of our
Process Safety Management standard; in fact, is one of the four
items that we cited most frequently during our National
Emphasis Program. It's an extremely important part, and
something we take very seriously when we find it has been
neglected.
Senator Murray. OK.
Senator Isakson.
Senator Isakson. Mr. Barab, I apologize, but I've been
reading my notes while you all were talking, so I discovered a
new OSHA question. So, I know this is not your panel, but I
want to try and get it in.
Are you familiar with Chao vs. Mallard Bay Drilling, Inc.?
Mr. Barab. No, I'm not, I'm sorry.
Senator Isakson. Well, I wasn't either, until I got deep
into my notes. But, that's a 2002 U.S. Supreme Court decision
that said OSHA had jurisdiction over Coast Guard-regulated
facilities like ships and vessels, as well as oil rigs. And
then I've read some of the ``yes, buts'' in here. But, my
question, I guess, is, there--obviously, the U.S. Supreme Court
found some authority for OSHA to do that off the shore. And
then I've read some of the contravening opinions, the ``yes,
but the--subject to Coast Guard jurisdiction,'' things like
that. The question I'm getting to is, Do you think OSHA--should
OSHA have the--OHSA inspects the oil rigs in Houston and on
ground. Is that right? The refineries and the----
Mr. Barab. Yes, sir. Yes, sir.
Senator Isakson. So, you've got the expertise. Should you
have the jurisdiction offshore?
Mr. Barab. Well, first of all, I'd----
Senator Isakson. Or, should we clarify the Chao ruling, I
guess?
Mr. Barab. Yes. Well, somebody just--my trusty associate
here just handed me a whole page on the Mallard Bay Drilling
decision, so--I'm not quite an expert on it yet. But----
Senator Isakson. You've got the same problem I do.
[Laughter.]
Because I had one behind me.
Mr. Barab. OK. There are a lot of intricacies in that,
versus what we call ``inspected vessels,'' versus ``uninspected
vessels'' by the Coast Guard.
Now, your question as to whether we ``should have,'' I'm
not really prepared to answer that. We'd, of course, be happy
to work with you on these kind of jurisdictional issues.
Obviously, there are major resource implications to us taking
over any other authority, particularly on a subject as broad as
oil platforms.
Senator Isakson. I appreciate the answer to the question.
And, Mr. ``Numbarger''--is that----
Mr. Nibarger. Nibarger.
Senator Isakson. Nibarger. Is your expertise in--have you
done any stuff in oil rigs offshore, or is yours primarily on--
--
Mr. Nibarger. No, sir. No.
Senator Isakson. You were steelworkers.
Mr. Nibarger. Yes. It's refining.
Senator Isakson. Refining.
Mr. Nibarger. Yes.
Senator Isakson. But, compliance is your responsibility
now.
Mr. Nibarger. Yes.
Senator Isakson. OK, great.
And, Mr. Sawyer, what about OSHA having some regulation on
a deepwater well? What would be your opinion? ``Some
authority'' or ``authority'' for safety?
Mr. Sawyer. My opinion, I would think OSHA should have some
authority over deep well oil rigs.
Senator Isakson. What do you think, Mr. Drevna?
Mr. Drevna. Like I said, Senator, we do not represent that
segment of the industry, so.
Senator Isakson. But, you do represent the industry as--
onshore for----
Mr. Drevna. Not for drilling, sir, only for taking the
crude and making it into gasoline, diesel, and other products.
Senator Isakson. OK. I apologize.
Mr. Drevna. Yes.
Senator Isakson. Out of curiosity, we were talking a little
bit about MSHA and about--well, about inspections, in general.
Mr. Barab, in terms of--What would trigger an OSHA inspection
today? Is it an internal complaint that there's a problem, or
do you all have any type of regular scheduled inspection
process on drilling rigs that are onshore?
Mr. Barab. Well, with any workplace, there's a variety of
things that would trigger an inspection. Obviously, a fatality,
what we call a ``catastrophe,'' where multiple workers are
hospitalized, a worker complaint--a formal complaint from a
worker.
In terms of oil rigs--I'm sorry--oil and gas rigs on land,
several of our regions and several of the State plans also have
what's known as Local Emphasis Programs. And what that means
is, they put--same thing as our National Emphasis Program for
the refineries--we put special emphasis on making sure that we
get out to visit as many of those facilities as we can without
waiting for a fatality, or without waiting for a complaint.
Senator Isakson. So, most of it is subject to something
going wrong, and you come in to find out what they should have
done.
Mr. Barab When things have been going wrong--yes, most of
it--well, a lot of it is. We have a targeting system where we
target, based on injuries and illnesses. Again, we have our
incident investigations when there's been a fatality. When
there are indications that there are a number of problems in
any kind of industry sector, that's when we either do a
National Emphasis Program or, in the cases where it's more
localized, a more Local Emphasis Program. And, again, we now
have a National Emphasis Program for refineries. And we have
six Local Emphasis Programs around the States that focus on oil
and gas drilling operations.
Senator Isakson. And you're not familiar with MMS, in terms
of whatever their procedures are.
Mr. Barab. I've learned a lot about MMS over the last few
weeks, but, no, I'm not intimately familiar with their
procedures.
Senator Isakson. Madam Chairman, this is a little late,
because I probably should have thought of this earlier, but we
might have a hearing and invite MMS to tell us how they reach
the conclusions on prelicensing of a rig. Because I know they
have safety compliance requirements they put in, in terms of
drilling, and then what their inspection process is. Because
they evidently would, right now, under the statutes, have the
authority to do that. Am I correct?
Mr. Barab. Yes. There was actually an article in the
Washington Post today about some of the MMS procedures and how
frequently they have to inspect, and their issues with staffing
and expertise. I thought it was very informative.
Senator Isakson. We'll look into that.
Thank you very much.
Senator Murray. Thank you.
Senator Franken.
Senator Franken. Thank you, Madam Chair.
Mr. Drevna, in your written testimony, you provided us with
one chart.
Mr. Drevna. Yes, sir.
Senator Franken. OK. It was a chart that you, I guess,
chose to be the most important chart for us to see.
And in the chart, it shows your organization's report of
occupational injury and illness. And you had Mr. Barab at your
conference?
Mr. Drevna. Yes, sir.
Senator Franken. Did Mr. Barab, at your conference, say
what he said here in testimony, that he's sick and tired about
hearing about the industry's safety record while burying
fathers and mothers?
Mr. Drevna. He didn't say it in those exact terms, sir,
but, yes, he did specifically talk about the chart. And my
response would be, sir, that we don't collect that data that
way. That is not our chart. That is the government chart. And I
agree, we need to compare ourselves to ourselves. We have to
look in the mirror when it comes to health and safety. That's a
reporting of government data, just to indicate that we are
striving, daily, to enhance safety, to enhance the culture. And
I understand that, in my opinion, we don't compare ourselves;
the government does. But, our job is to compare ourselves to
ourselves, and do better.
Senator Franken. Here's my problem. You chose, in your
written testimony, as I say, to provide us with one chart. Mr.
Nibarger also pointed out that the injury and illness or record
has absolutely no correlation to these--what we're actually
talking about today, which are these explosions and these
catastrophes that cause death. And Mr. Barab said it, as well.
And my question is, Why would you include this chart that
doesn't in any way correlate to what we're talking about today?
Mr. Drevna. Well, Senator, it does correlate. Those
statistics are captured in that chart.
Senator Franken. No, they're injury and illness.
Mr. Barab, am I correct in characterizing your testimony?
Mr. Barab. Well, yes. And our basic point is that injury
and illness statistics do not provide a lot of predictive value
as to the likelihood of the plant blowing up.
Senator Franken. And, Mr. Nibarger, am I correct in my
characterization of your testimony?
Mr. Nibarger. Yes, I would say that the refinery operators
are very cautious people, they're very well-educated, and they
pride themselves in not injuring themselves. But, process
safety is not indicated from occupational injury and incident
rates. They're two separate things.
Senator Franken. So, I'd certainly say that, of the three
witnesses who talked specifically about these illness and
injury rates, two of them, who are not tied--not president of
your organization, have said that they have no correlation
whatsoever with the subject of today's hearing. And that
troubles me.
Let's move on to the work safety culture. And, Mr. Drevna,
I understand you don't directly represent BP.
Mr. Drevna. That's correct.
Senator Franken. And right now we're paying attention to
BP's deepwater drilling, which your organization has nothing to
do with. You're about refining.
However, I saw an analysis, of the Center for Public
Integrity, which showed that 97 percent of all flagrant
violations in the refining industry over the past 3 years went
to BP.
Mr. Drevna. Senator, I saw that same report.
Senator Franken. OK. And I have another thing that comes
from OHSA citations, to U.S. refineries, of ``egregious willful
citations''--760 for BP; other refineries, 1.
Mr. Drevna. Senator, I also saw that report.
Senator Franken. Would you say that BP has a good workplace
safety culture?
Mr. Drevna. Senator, that's not for me to judge.
Senator Franken. OK. Yes, you don't want to draw
conclusions hastily.
[Laughter.]
BP received a total of 862 citations between June 2007 and
February 2010 for alleged violations at its refineries in Texas
City and Toledo, OH, both of which had fatal accidents. I did a
little research into the two facilities in Minnesota, and there
were only five citations issued during a recent 5-year period.
These are pretty dramatic discrepancies.
Let me ask you another more theoretical question. What
factors influence the workplace culture toward process safety?
Can you speak to that?
Mr. Drevna. Yes, sir----
Senator Franken. Oh.
Mr. Drevna. I can. And even to go back to, hopefully,
answer your other question a little bit better, if there is--I
think your statistics that you've referenced there, document
the fact--as I said in my testimony, that it's not a systemic
problem throughout the industry. Now, again, I'm not here to
say that there's no problem throughout--in the industry.
Senator Franken. Right.
Mr. Drevna. Yes.
Senator Franken. I understand. In fact, you made a very
good point. You said there are bad actors and then there are
others.
Mr. Drevna. Yes. But, the process safety is exactly what
this--the workshop that we are going to be conducting with
OSHA, with Chemical Safety--we hope, with the Chemical Safety
Board, the USW, the trade unions. So everyone can sit around
the table and figure out exactly where, when, how--and as I
think Senator Isakson said earlier, let's learn from the past,
but let's make sure it doesn't happen in the future. Let's look
forward.
Senator Franken. I think that's a great attitude. And I
hope you do those workshops. I hope you do them with OSHA.
Mr. Drevna. Yes.
Senator Franken. But all I would suggest is--and I know
I've run out of time, Madam Chair--is that when you're the
president of the Petrochemical & Refiners Association--and when
you have one company that has 97 percent of all the flagrant
violations in your industry, maybe--and I don't know, I haven't
been in your position.
Mr. Drevna. Senator, may I suggest that--we represent
over--almost approaching 93, 94 percent of the total capacity
in the country, on the refining side. We do not represent BP on
the refining side in our association.
Senator Franken. You don't represent BP--in other words, it
isn't part of your association?
Mr. Drevna. No, sir, not on the refining side.
Senator Franken. Oh. So, I see. So, you have nothing to say
about BP.
Mr. Drevna. I stand by my written statement and my oral
statement, sir.
Senator Franken. OK. Well, I understand that, but why don't
you elaborate on that. That, in other words, BP doesn't belong
to your organization.
Mr. Drevna. Not on our refining side, sir, no.
Senator Franken. Not on the refining side.
Mr. Drevna. They belong on the petrochemical side.
Senator Franken. On the petrochemical side.
Mr. Drevna. Yes, sir.
Senator Franken. OK. I see. Thank you.
Senator Murray. Let me follow up on that. I'm really
confused by that, because on your Web site, it says you do
represent BP.
Mr. Drevna. On the petrochemical side.
Senator Murray. OK. So, I know you're in the hot-seat here,
and that can't be a friendly one this morning, but it really
struck me, because in your opening statement, you said,
nothing--absolutely nothing--is more important to you than
workplace safety. And we're sitting here today, in the past 2
months alone, with 13 fires, 19 deaths, and 25 injuries in the
oil and gas industry. There's been an average of one fire every
week this year at our refineries. And one of the companies that
you don't represent, on one side, BP, has two refineries that
accounted for 760 egregiously willful safety violations in 2
years. So, are you not standing behind BP, then?
Mr. Drevna. I'm standing behind the industry, that we could
never guarantee that there will be no accidents in this
industry.
Senator Murray. Do you think that BP ought to come to the
table on this?
Mr. Drevna. Madam Chair, that is a discussion for OSHA and
BP.
Senator Murray. Well, and as I have indicated several times
here, we invited BP to be here today, and they refused to come.
So you're it.
Mr. Drevna. The rest of the refining industry did choose to
come. And I appreciate the opportunity, ma'am.
Senator Murray Yes, and, Mr. Drevna, I do appreciate your
coming and doing that. But, it is deeply troubling to me, to
this committee, as we are trying to look at the industry as a
whole and understand what happened and make the right decisions
for the future. And I know you're not ``it,'' but----
Mr. Drevna. Well, we--I could take a little bit of
exception to that, Madam Chair, in that when you look at the
statistics, we do represent the vast majority of the industry
capacity, and we've----
Senator Murray. Does your industry stand behind BP?
Mr. Drevna. That, I believe is a question that--again, that
the--``stand behind'' is a broad term, ma'am. And there's so
many different things going on right now. We have got to do
better, as a total industry. I'll be the first to admit that.
My industry will be the first to admit that. That's why we want
to sit down with OSHA, Steelworkers, the other trade unions,
and work this thing through. And, again, not through press
releases or theatrics, but through real, hard, roll-up-the-
sleeves kind of action.
Senator Murray. And I would just say, that's what this
committee wants to do. It's hard to do when BP won't come to
the table and be a part of the discussion.
Mr. Drevna [continuing]. But, I can guarantee you that the
rest of the industry will be actively working.
Senator Murray. Well----
Mr. Drevna. I've got a commitment from----
Senator Murray [continuing]. I would suggest that the rest
of the industry actively tell BP how it feels to be sitting
there.
I just have a couple more questions.
Mr. Sawyer, I did want to ask you--because it is my
understanding that Contra Costa County's industrial safety
ordinance has been regarded as highly successful. And I really
appreciate that. It's well received by leaders in the oil
industry. And, since the implementation of that ordinance, the
number and severity of major chemical accidents have steadily
decreased.
So, I wanted to ask you today, Do you believe that the oil
and gas industry would voluntarily provide the same level of
worker protection as your county's industrial safety ordinance?
Mr. Sawyer. Some of the companies, I think, would. But, I
don't think all the companies would. And, as previously
mentioned, there are some very good companies, some very good
refineries out there that do very good work and some----
Senator Murray. Right.
Mr. Sawyer. [continuing]. That had to come and--be forced
into it.
Senator Murray. So, voluntary covers the ones who want to
be good, and----
Mr. Sawyer. That's correct.
Senator Murray. You also mentioned that the Contra Costa
Health Services has six engineers with industrial experience on
your staff who are dedicated to this, and that when an audit
occurs at a petroleum refinery, it can take five engineers 4
weeks to complete the audit.
How critical is it, in your estimation, to have highly
qualified engineers with relevant industrial experience on the
staff to carry out the requirements of the ordinance?
Mr. Sawyer. I believe it's highly critical. I think it's
very important that the people who are regulating the
facilities understand the facilities and be able to talk to the
people in like ways.
Senator Murray. OK. So, in your estimation, having those
qualified people, whoever are inspecting them, is extremely
important.
And, Mr. Barab, how many qualified inspectors do we have
today at OSHA?
Mr. Barab. We have about 300 that are qualified to
participate in these inspections. We have about 100 that are
qualified to be team leaders in this.
Senator Murray. Engineers?
Mr. Barab. They're not all engineers. They've been
trained--they're OSHA inspectors--they've been trained.
Senator Murray. And, in your estimation, is that enough?
Mr. Barab. Well, it's not--let me put it this way, it's not
enough to have a regular presence in each refinery the same way
that Contra Costa County has.
Senator Murray. And we see that this did make a difference,
in his county. All right.
Senator Franken, do you have any additional questions?
Senator Franken. Well, I'm just curious about something,
Mr. Drevna. You say that BP isn't part of the National
Petrochemical & Refinery Association--on refining, on that
part.
Mr. Drevna. Yes, sir.
Senator Franken. OK. I've got it. They do belong in
petrochemicals. Is that common? Are there other very big
refiners who aren't part of your organization, or did----
Mr. Drevna. No, sir.
Senator Franken. There aren't.
So, everybody else but BP is part of your association.
Mr. Drevna. Well, there are a few----
Senator Franken. I mean, that's big----
Mr. Drevna. Absolutely, sir. Yes.
Senator Franken. I just find that interesting.
You don't know why?
Mr. Drevna It's the business decision that was made by
them.
Senator Franken. OK. Because you were talking about good
actors and bad actors. And I think we may have identified a bad
actor.
Mr. Drevna. Well, I--
[Laughter.]
Senator Franken. Thank you, sir.
Senator Murray. Thank you all very much, to our witnesses.
I really appreciate your being here.
And before we close, today, I just wanted to say that,
earlier this week, our House colleagues, Chairman Stupak and
Ranking Member Barton, on the Subcommittee on Oversight and
Investigations, did send a letter to chairman John Bresland of
the Chemical Safety Board to investigate the root causes of the
April 20 blowout on the Deepwater Horizon rig. That letter
references CSB's past work on investigation into BP's 2005
explosion, at BP's Texas City refinery, and the comparisons to
safety concerns that contributed to the massive leak at a BP
pipeline in Prudhoe Bay, AK, in 2006, as reasons the CSB is
uniquely qualified to investigate this latest tragedy on the
Deepwater Horizon rig.
For the record, I want you all to know I support that
investigative request. And with it, I do want to encourage my
colleagues in the Senate to swiftly confirm Dr. Rafael Moure
and Mr. Mark Griffon to fill the current vacancies on the U.S.
Chemical Safety Board so that the CSB has the resources and the
staff they need to begin this investigation as soon as
possible.
The families of the 11 workers who lost their lives deserve
to have factual information about what happened to their loved
ones that dreaded day. And so, we can move forward with any
changes necessary to make sure a disaster like this just never
happens again.
I wanted to say that, and thank our witnesses for being
here today and participating in this important hearing.
Know that members may want to submit additional questions
to any of you for your written response.
And for any of our members who want to submit a statement,
the hearing record will be open for the 7 days.
And before we close, without objection, I would like to
submit this United Steelworkers Oil Worker Newsletter. It's
dated--issue number 13, dated June 8, 2010, for the record.

Senator Murray. And with that, this hearing is adjourned.
[Additional material follows.]

ADDITIONAL MATERIAL

National Petrochemical & Refiners Association,
NPRA,
Washington, DC 20006,
June 22, 2010.
Hon. Johnny Isakson, Ranking Member,
U.S. Senate HELP Committee,
Subcommittee on Employment and Workplace Safety,
410 Dirksen Senate Office Building,
Washington, DC 20510.

Dear Senator Isakson: I appeared before the Subcommittee on
Employment and Workplace Safety on June 10, 2010 to testify on
``Production Over Protections: A Review of Process Safety Management in
the Oil and Gas Industry.''
Attached please find answers to the questions that you submitted.
On behalf of NPRA, I look forward to working further with the
committee on this issue.
Sincerely,
Charles T. Drevna, President.
______

Response by Charles T. Drevna to Questions of Senator Isakson

Question 1. Can you elaborate on the statistics NPRA collects? How
do those statistics differ with those collected by the Bureau of Labor
Statistics? Please describe the metrics available for analysis?
Answer 1. NPRA has compiled a report of Occupational Injuries and
Illness statistics for employees in accordance with OSHA recordkeeping
rules since 1976. The latest Occupational Injury and Illness statistics
we have are for calendar year 2008. The calendar year 2009 report will
be completed next month. The NPRA report contains a compilation of
statistics relating to company employee and contractor fatalities,
injuries and illness to better reflect the actual rate of injury and
illness at facilities.
There are several differences between NPRA's statistics and those
of the Bureau of Labor Statistics (BLS). In the NPRA Occupational
Injuries and Illness report, NPRA includes fatalities in the Total
Recordable Incident Rate, whereas the BLS does not. NPRA surveys on
average 80-85 percent of all refineries in the United States. This
equates to approximately 90-95 percent of NPRA members. The BLS surveys
only a handful of refineries in its reports, so it is only a small
sampling of domestic refineries. Additionally, the BLS does not collect
contractor injury and illness statistics and include them with
statistics from the petroleum refining industry. Including these
statistics, as NPRA does, gives a more accurate reflection of the
incident rates throughout American refineries. We agree with OSHA and
the USW that the BLS statistics do not accurately reflect the industry
as a whole, which is why NPRA's statistics capture much more than
``trips, slips and falls.''
As I mentioned during the hearing, NPRA's statistics do include all
workforce injuries that were a consequence of a process safety event
(i.e. fire, chemical release, or explosion). In January 2011, NPRA will
begin to formally collect process safety leading and lagging indicators
based on the API standard ANSI API RP 754, ``Process Safety Performance
Indicators for the Refining and Petrochemical Industries.'' This data
will provide the industry with a more complete picture of process
safety at our Nation's refineries and petrochemical facilities.

Question 2. USW's testimony states, ``There have been 29 fires and
explosions reported in refineries so far this year. In the majority of
those no one was hurt but that was primarily a matter of luck.'' Do you
really consider it simply to be good luck that few employees were hurt
in 29 refinery fires? Do you believe some credit should be given to the
improvement of safety procedures at these facilities?
Answer 2. It is absolutely not luck that few employees were hurt in
the instances referenced. Improvements in safety procedures at
facilities certainly deserve some credit for preventing injuries in
these incidents. As I mentioned in my testimony, ``These aren't your
father's refineries.'' Industry is continuously evolving their
technologies and procedures. Our members have been constantly working
to maximize protections and minimize exposures. Our companies have
procedures to keep employees out of hazard areas and have implemented
several layers of protection on all equipment and processes to limit
risk of exposure and/or injury of their workforce. The NPRA
Occupational Injury and Illness statistics show constant improvement by
the industry in decreasing the number of company employees and
contractors injured on the job. This can be attributed to better safety
procedures and improved technological advancements in the industry over
the years. The steps industry has taken certainly deserve credit for
the fact that the 29 incidents mentioned resulted in very few injuries.
Petroleum manufacturers take workplace safety very seriously, because
they know that when you are working with highly hazardous chemicals,
you cannot avoid injury through ``good luck.''
While we have a good track record, I want to emphasize the points
made in my testimony: We want to make sure it stays that way. The
status quo will never be good enough for our membership. We take EVERY
incident seriously and work to develop lessons learned in the aftermath
of any incident to assess what went wrong and how to do things better.
The process safety workshop we're holding with OSHA and union officials
later this year will help us continue advancing our goal of zero
incidents and injuries.

Question 3. USW and OSHA witnesses seemed to claim that current
OSHA authority is insufficient because it provides too much leeway for
businesses to contest fines and penalties through a lengthy and costly
legal process. Both witnesses also seemed to claim that partly because
of this alleged problem with Federal authority, companies are not
taking steps to correct problems that are discovered during
inspections. What is your response to this accusation?
Answer 3. After an OSHA inspection, there is a settlement process
that allows both OSHA and the company due process in the enforcement
proceedings. This is different from a company contesting a citation.
Very few citations actually get contested and go through legal
proceedings. A majority of citations are codified during the settlement
process that allows both parties to discuss the citations and come to
an agreement on how and if the citation requires abatement. This
prevents citations from being contested in a long and lengthy legal
process. There are several reasons why a company and OSHA choose to
settle a citation. Below are a few examples:

(a) The inspector might not have fully understood the engineering
principles and analysis that went into decisions made by the company.
The Process Safety Management standard is a performance-based standard.
Because no refinery is the same, each facility will have slightly
different process hazard analysis and safety devices. There tend to be
situations where OSHA and the company may have different perspectives
on how to comply with the PSM standard. In this situation, the citation
is usually settled once both parties discuss each other's perspective.
It is unrealistic to expect OSHA investigators to intimately know the
technical details of each facility they inspect. This in no way implies
that there are hazards that OSHA, ``allows to slip through the
cracks,'' but merely acknowledges that not every initial citation is
the best approach to process safety for that specific refinery.
(b) The company was in the process of making improvements. If a
company has a project in progress to address an issue or comply with a
new standard, but that project is not complete at the time of
inspection, OSHA will still issue a citation in the exact same manner
as if the company wasn't doing anything at all and was out of
compliance. An example of this is if a company is in the process of
building blast resistant trailers to comply with API RP 753, the
inspector would cite that company the same way as if they had made no
effort to comply with the Facility Siting Standard for portable
buildings. These issues are addressed during the settlement process
instead of getting formally contested.
(c) The company settled to invest in an upgrade that is more than
the fine itself. The settlement process is not just about the company,
it also gives OSHA the opportunity to discuss safety improvements with
the company. A citation may be settled if the company agrees to make an
investment in the refinery. This is a win-win situation for everyone
and would not happen if there were no period allowed for an informal
settlement.

As mentioned above the settlement process benefits both OSHA and
the company in improving workplace safety. However, given the
complexity of each scenario behind a citation, companies cannot review
a list of citations and interpret them to enhance workplace safety at
their own facilities without knowing the thought process behind the
citations from both OSHA and the company. Process safety relies heavily
on documentation and an investigation requires OSHA to review thousands
and thousands of documents. A majority of the citations reference
lapses in paperwork and have no reference to the management systems
behind the process safety program. For this reason, lessons learned
from the Baker Report, CSB reports and videos, and industry
presentations at conferences are extremely beneficial in the learning
process and enhancing process safety programs due to their in-depth
analysis, detail, and recommendations for enhancing the management
system which is the backbone of safety programs at a refinery.
______

American Petroleum Institute, API,
Washington, DC 20005,
June 17, 2010.
Hon. Patty Murray, Chairman,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Subcommittee on Employment and Workplace Safety,
428 Senate Dirksen Office Building,
Washington, DC 20510.

Hon. Johnny Isakson, Ranking Member,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Subcommittee on Employment and Workplace Safety,
428 Senate Dirksen Office Building,
Washington, DC 20510.

Dear Chairman Murray and Ranking Member Isakson: API would like to
address a potential misunderstanding that could result from the written
testimony provided by Kim Nibarger of the United Steelworkers Union
(USW) at the June 10, 2010 subcommittee hearing. In Mr. Nibarger's
written testimony, he states the following:

As a result of another U.S. Chemical Safety Board (CSB)
recommendation from BP Texas City, we have seen trailers for
the most part moved out of predicted blast zones only to be
replaced by tents which are allowed by a newly written API
Recommended Practice.

It is correct that API has published two recommended practices
addressing process plant building locations: API Recommended Practice
(RP) 752, Management of Hazards Associated with Location of Process
Plant Permanent Buildings, and API RP 753, Management of Hazards
Associated with Location of Process Plant Portable Buildings. Tents,
lightweight fabric enclosures, and other soft-sided structures are not
classified as either permanent buildings or portable buildings and, as
a result, are not covered by either recommended practice.\1\ It is
misleading, therefore, for the USW to state that API RPs allow tents to
be placed in predicted blast zones.
---------------------------------------------------------------------------
\1\ RP 752, Section 1, ``Scope''; RP 753, Section 1.7.10.
``Definition--Portable Building''.
---------------------------------------------------------------------------
The oil and natural gas industry, however, recognizes that the
placement of tents merits further analysis. To that end API and NPRA
conducted an industry forum in January, with OSHA support and
participation, which concluded that further industry guidance on tent
siting is needed. API has since initiated a new effort to develop
industry relevant recommendations, as the factors associated with the
safe location of tents may be vastly different from those of permanent
and portable buildings.
API's standards program is accredited by the American National
Standards Institute (ANSI) and our process is open to participation by
all materially affected parties. We welcome and encourage the USW,
along with government representatives and other interested
stakeholders, to participate in this important effort.
Thank you for the opportunity to provide this clarification, and
should you require additional information, please contact David Miller,
API Standards Director, at 202-682-8159.
Sincerely,
Robert L. Greco,
Group Director,
Downstream and Industry Operations.

[Whereupon, at 11:47 a.m., the hearing was adjourned.]