[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

                                   ON

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


      Available via the World Wide Web: http://www.gpo.gov/fdsys/



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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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
                       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.
---------------------------------------------------------------------------
     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.

[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://assets.usw.org/publications/
oil.]

    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.]

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