[Senate Hearing 113-809]
[From the U.S. Government Publishing Office]






                                                        S. Hrg. 113-809

                 OVERSIGHT OF THE IMPLEMENTATION OF THE
                PRESIDENT'S EXECUTIVE ORDER ON IMPROVING
                 CHEMICAL FACILITY SAFETY AND SECURITY

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                                   &
                        HEALTH, EDUCATION, LABOR
                              AND PENSIONS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           DECEMBER 11, 2014

                               __________

  Printed for the use of the Committee on Environment and Public Works

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



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              COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS &
                 HEALTH, EDUCATION, LABOR AND PENSIONS

                    ONE HUNDRED THIRTEENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JAMES M. INHOFE, Oklahoma
BERNARD SANDERS, Vermont             JOHN BARRASSO, Wyoming
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
TOM UDALL, New Mexico                MIKE CRAPO, Idaho
JEFF MERKLEY, Oregon                 ROGER WICKER, Mississippi
KIRSTEN GILLIBRAND, New York         JOHN BOOZMAN, Arkansas
CORY A. BOOKER, New Jersey           DEB FISCHER, Nebraska
EDWARD J. MARKEY, Massachusetts

                Bettina Poirier, Majority Staff Director
                  Zak Baig, Republican Staff Director
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                            C O N T E N T S

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                           DECEMBER 11, 2014
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     3
Markey, Hon. Edward, U.S. Senator from the State of Massachusetts     8
Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     9
Casey, Hon. Robert P., U.S. Senator from the State of 
  Pennsylvania, prepared statement...............................   114

                               WITNESSES

Michaels, David, Ph.D., Mph, Assistant Secretary of Labor for 
  Occupational Safety and Health, U.S. Department of Labor.......    12
    Prepared statement...........................................    15
Responses to additional questions from:
    Senator Boxer................................................    26
    Senator Markey...............................................    27
    Senator Casey................................................    32
    Senator Murray...............................................    38
    Senator Enzi.................................................    42
    Senator Hatch................................................    44
    Senator Roberts..............................................    45
Stanislaus, Mathy, Assistant Administrator, Office of Solid Waste 
  and Emergency Response, U.S. Environmental Protection Agency...    47
    Prepared statement...........................................    49

                          ADDITIONAL MATERIAL

Statement by IME, Institute of Makers of Explosives..............   110
 
 OVERSIGHT OF THE IMPLEMENTATION OF THE PRESIDENT'S EXECUTIVE ORDER ON 
            IMPROVING CHEMICAL FACILITY SAFETY AND SECURITY

                              ----------                              


                      THURSDAY, DECEMBER 11, 2014

                               U.S. Senate,
     Committee on Environment and Public Works, and
         Committee on Health, Education, Labor and Pensions
                                                    Washington, DC.
    The committees met, pursuant to notice, at 9:31 a.m. in 
room 406, Dirksen Senate Building, Hon. Barbara Boxer and Hon. 
Robert P. Casey (co-chairs of the committees) presiding.
    Present: Senators Boxer, Markey, Vitter, Barrasso, Crapo, 
Boozman, Franken, Bennet and Murphy.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Welcome to the Environment and Public Works 
Committee.
    As usual, we are on a horrible schedule. This is such an 
important hearing and I am so pleased that you are here.
    The Environment and Public Works Committee is joining with 
the Committee on Health, Education, Labor and Pensions. Senator 
Casey is coming shortly at about 10 a.m. to continue the 
hearing.
    My situation is that right down the hall at 10 a.m., my 
Foreign Relations Committee is holding a markup on a bill to 
confront ISIS, whatever you call it. We have to confront them 
so I will have to leave at 10 a.m.
    I will have a half hour with you and then Senator Casey 
will have his time with you.
    Why are we here? In April 2013, a massive explosion at a 
fertilizer distribution plant in West, Texas killed 15 people, 
injured hundreds more and damaged or destroyed homes, 
businesses and three unoccupied schools.
    Chemical facilities can be a threat to communities, 
including schools, across our Nation. A recent report by the 
Center for Effective Governance found that one out of three 
school children in America today attend a school within the 
vulnerability zone of a hazardous chemical facility.
    I want to repeat that. One out of three school children in 
America today attend a school within the vulnerability zone of 
a hazardous chemical facility. As many as 10 million children 
go to school under the shadow of two hazardous zones.
    If we believe what we say about the safety of our kids, 
keep that in mind. Ten million children go to school under the 
shadow of two hazardous zones and one out of three kids attends 
schools within the vulnerability zone of a hazardous chemical 
facility.
    After the disaster in West, Texas, I spoke with President 
Obama about the need to act. On August 13, he issued Executive 
Order 13650, Improving Chemical Facility Safety and Security.
    This Executive Order established a working group to conduct 
a comprehensive review of our chemical safety and security 
programs and develop recommendations for improving these 
programs.
    There is a lot of talk about President Obama issuing too 
many Executive Orders. He has issued the least of any modern 
President.
    In the 602 days since the West, Texas tragedy, there have 
been 355 chemical accidents, resulting in 79 deaths and 1,500 
hospitalizations. That is according to Chemical Safety Board 
data. You can see on the chart where these occurred.
    In my home State of California, we have had 23 chemical 
incidents and 96 people have been hospitalized. I am very 
concerned that despite the clear risks posed by our Nation's 
chemical facilities that very little progress has been made.
    The Executive Order directed 15 actions be taken, including 
proposing changes to safety measures for ammonium nitrate, 
proposing changes to the list of chemical hazards under EPA's 
program to reduce the risk of chemical accidents and providing 
more information to our brave first responders and accident 
investigators.
    Of the 15 actions directed by the Executive Order, only 
four have been completed. Six actions will not be complete 
until 2015 or later and five have no time line at all. No 
agency has proposed changes to its chemical safety program and 
not a single facility faces new Federal requirements to adopt 
safety precautions to reduce chemical hazard.
    You can see the list of what the orders are and out of all 
of them, only three have been completed. This seems to be going 
on, I say to my colleagues, over and over.
    One chemical that I have expressed concern about over and 
over is ammonium nitrate which was the cause of the West, Texas 
accident and was a key ingredient used in the Oklahoma City 
bombing and the 1993 World Trade Center bombing.
    In response to a GAO request submitted by Senators Casey, 
Murray, Representatives Miller and Courtney, and myself, GAO 
said that Federal regulation of ammonium nitrate contains gaps 
that may make certain facilities unsafe.
    The Chemical Safety Board reached similar conclusions and 
said EPA should address ammonium nitrate under its chemical 
safety standards. According to the Chemical Safety Board, the 
West, Texas accident could have been prevented had all those 
measures been in place.
    Although an update to a 1997 Safety Advisory on ammonium 
nitrate was issued in 2013, more action needs to be taken.
    Although the working group established in the Executive 
Order has convened months of meetings, its June report merely 
recommended more meetings and more information gathering. The 
time for meetings and deliberations about chemical safety is 
over and we need measurable, meaningful action to improve 
protection for workers, first responders and local residents.
    I hope to hear from our witnesses a renewed commitment to 
quickly finalize and implement key safety improvements so that 
we can avoid another tragedy like the one in west Texas.
    With that, I call on Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Madam Chair.
    I want to thank you and Chairman Harkin for convening this 
hearing today.
    The chemical industry is incredibly important to not just 
my home State of Louisiana but to our Nation as a whole.
    Before I continue on with this statement, I want to note 
that today Senator Inhofe and I sent a letter to our EPA 
witness on this very subject. I would like to enter that into 
the record.
    Senator Boxer. Without objection, so ordered.
    [The referenced information follows:]
    
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    Senator Vitter. When tragic accidents like the explosions 
in Geismar and Donaldsonville, Louisiana take place, it is 
critically important that they are thoroughly and expeditiously 
investigated.
    Genuine effort must be put forth to understand their causes 
and we must strive to prevent similar accidents in the future.
    Immediately following the explosion in Geismar, I requested 
that the Chemical Safety Board dispatch a team to Louisiana 
which they did. I appreciate their work and the updates on 
their work.
    It is secret that chemical manufacturers spend billions of 
dollars annually in safety, health, environmental and security 
programs through initiatives like American Chemistry Council's 
Responsible Care.
    Others in the regulated community have initiatives like the 
fertilizer industry which just this week launched such an 
initiative.
    Despite all of this work, nothing comes without risk and 
there have been tragic, tragic accidents. Whenever they occur, 
it reminds us that we must all collaborate and we must all do 
better.
    Today, we are here today to discuss President Obama's 
Executive Order 13650, Improving Chemical Safety and Security. 
Unfortunately, I believe that many of the actions being 
contemplated as part of this order may actually result in 
outcomes contrary to our collective goals. More specifically, 
they may result in less compliance with the law and less safety 
at sites.
    To quote a previous committee witness who testified on this 
very issue, Rick Webber from the Ascension Parish Office of 
Homeland Security, ``I cannot emphasize enough that all 
disasters are initially local.''
    In Louisiana, we are fortunate to have robust local 
emergency planning committees which Mr. Webber called ``the 
most critical function that a community can perform to prevent, 
mitigate and respond to and recover from an industrial 
accident.''
    I believe that before we create any new complicated Federal 
mandates, which in many cases create problems and don't just 
fix problems, we need to better understand what problems we are 
trying to solve. We need to make sure we are giving folks 
within local communities the tools they need to ensure safety.
    Given that a great deal of our committee discussions have 
centered around ammonium nitrate, as the Chair's comments 
touched on, I want to reference a May report from the 
nonpartisan Government Accountability Office on Chemical Safety 
which helps make my broader point.
    It makes clear that unless OSHA takes additional action to 
``promote awareness of how to comply with its regulations, 
fertilizer facilities may not know whether their practices are 
in compliance with OSHA's existing ammonia nitrate storage 
regulations.''
    Another issue I hope we focus on today is the stark 
contrast in the way the two agencies testifying before us are 
carrying out their respective rulemakings. The whole point of 
this joint hearing is to try to get everyone on the same page.
    I am afraid the two agencies before us today illustrate 
that we are not near there yet. In particular, I have concerns 
about EPA's path forward does not appear to be willing or 
interested in any small business review, seeking advice to a 
Clean Air Act Advisory Committee panel or convening a committee 
of experts under the Federal Advisory Committee Act, all of 
which is in Federal law.
    These differences are particularly troubling when you 
consider the agencies and their rules are directed by the 
Executive Order to be coordinated and harmonized and they are 
clearly not.
    Ensuring the citizens, workers and communities across 
Louisiana and the Nation are protected from industrial 
accidents of all kinds should always be a top priority. It 
certainly is a top priority of mine. It should always be based 
on considered information from what we have learned.
    I hope the hearing today helps us to take a positive step 
in that right direction.
    Again, I thank the two chairmen for holding this important 
hearing.
    Senator Boxer. Thank you very much, Senator Vitter.
    We turn to Senator Markey and then if no Republican is 
here, we will turn to Senator Franken.

           OPENING STATEMENT OF HON. EDWARD MARKEY, 
          U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

    Senator Markey. Thank you, Madam Chairman. Thank you for 
calling today's important hearing on improving chemical 
facility safety and security.
    The chemical sector is a testament to American ingenuity. 
It forms an essential building block of our economy, helps to 
keep our food and water safe and is integral to almost ever 
consumer product we use in our daily lives.
    The same chemicals that save and improve the quality of our 
lives can also take lives away. Whether we are talking about 
accidents or attacks, the map Chairman Boxer held up clearly 
shows this to be a danger deserving urgent and immediate 
attention.
    An analysis I am releasing today shows that according to 
EPA data, there are thousands of facilities in this Country 
whose contends endanger the lives of millions of Americans. 
More than a year and a half ago, in West, Texas, an accidental 
explosion at an ammonium nitrate fertilizer facility killed 15 
people and leveled many buildings, including three schools.
    Ammonium nitrate was also used in the 1993 World Trade 
Center bombing and the 1995 Oklahoma City bombing.
    Just this past Sunday, several thousand people were 
evacuated from a hotel in Illinois when what was described as 
an intention chlorine gas incident sent 19 people to the 
hospital. There have also been many reports of chlorine gas 
allegedly used by ISIL and others to kill and injure people in 
Syria and Iraq.
    Despite the urgent need to act, I do not see any urgency in 
the Administration's plans to increase safety and security of 
chemical facilities. The Department of Homeland Security has 
warned of insider sabotage attempts at water facilities and 
said that there is a critical security gap at waste water and 
drinking water facilities that use dangerous chemicals.
    Nowhere in the response to the President's Executive Order 
is there a plan for EPA to require security measures at the 
thousands of water facilities that use the same chlorine 
cylinders to purify drinking water as are being used as weapons 
by ISIL.
    Five years ago, EPA supported legislation I authored that 
passed the House of Representatives that would have ensured 
that facilities containing toxic chemicals switch to safer 
processes or substances when it was technologically and 
economically feasible to do so.
    Nowhere in the response to the President's Executive Order 
is there a requirement for facilities to switch to less 
dangerous chemicals, even though the cost of making such a 
switch at D.C.'s Blue Plains Water Plant added less than $1 to 
people's monthly bills.
    Both the Chemical Safety Board and the GAO have said that 
safety regulations for ammonium nitrate must be upgraded, but 
nowhere in the response to the President's Executive Order is 
there a directive to require more safety measures for this 
chemical that has already been the cause of so many deliberate 
and accidental deaths in this Country.
    We would do well to recognize that preventing every 
accident, attack or natural disaster is impossible, but what 
can be we do to prevent the worse consequences of these events, 
what can we do to recognize that catastrophic accidents and 
attacks using chemicals have already happened?
    What we can do is to heed the wake-up calls that point out 
the cost of our failure to reduce the frequency and 
consequences of chemical accidents.
    I am disappointed in the Administration's response to the 
President's Executive Order. I urge you to redouble your 
efforts to implement real change, not just more information 
gathering that properly responds to the threat of which so many 
have warned.
    Senator Boxer. Thank you, Senator.
    Senator Barrasso.

           OPENING STATEMENT OF HON. JOHN BARRASSO, 
             U.S. SENATOR FROM THE STATE OF WYOMING

    Senator Barrasso. Thank you very much, Madam Chairman.
    I look forward to the hearing today. Thank you for having 
it.
    As I have stated in the past, my home State of Wyoming is 
the largest consumer in the United States of ammonium nitrate, 
a chemical oxidizer implicated in the West, Texas accident. 
Mining companies in Wyoming use over 1.5 billion pounds of 
ammonium nitrate each year in places like the Powder River 
Basin when they use it to extract coal.
    At these mining sites, ammonium nitrate is mixed with fuel 
oil, pumped or poured into a blast hole which is then fitted 
with an initiation system. The subsequent explosion heaves away 
the rock to get to the coal and the minerals below.
    Through this process, Wyoming and other mining States in 
places like Nevada, Kentucky, West Virginia and Ohio, can 
provide essential building materials as well as affordable 
energy for families and small businesses all around the 
Country.
    The use of ammonium nitrate is so pervasive that there is 
no viable substitute for the commercial explosives industry. 
Without this material, the industry would have no alternative 
but to return to the use of nitroglycerin-based products which 
are far less safe.
    We know there are a series of Federal agencies that 
regulate facilities like those in West, Texas, including OSHA, 
Homeland Security, the Department of Transportation, the EPA, 
the Mine Safety and Health Administration, the U.S. Coast Guard 
and ATF.
    OSHA has the most comprehensive standards for ammonium 
nitrate in terms of safety and has demonstrated its commitment 
to enforcing those standards. For example, on October 9, 2013, 
OSHA issued 24 citations to the owner of the West fertilizer 
facility.
    As a result of the Interagency Working Group established by 
the President, OSHA is now considering if the standards need to 
be improved. Alternatively, the Working Group has asked whether 
OSHA should add ammonium nitrate to its Process Safety 
Management Program which could be a potential gateway to the 
EPA's Risk Management Program, the RMP.
    As has been acknowledged by the Chemical Safety Board 
during hearings last year, there is no evidence that there has 
ever been an accidental detonation of ammonium nitrate when a 
facility has been compliant with the existing OSHA standards.
    As a result of this track record, I support OSHA's proposed 
option to review and update its existing standards if 
necessary. OSHA has stated it will take appropriate time, 
perhaps a number of years, to finalize new requirements.
    I do have concerns that the EPA has made conflicting 
statements about whether it will allow OSHA's process to play 
out before the agency attempts to inject itself into the 
regulatory framework by adding ammonium nitrate to the RMP.
    On October 29, I along with Senators Manchin, Enzi, Hatch 
and Heller, wrote a bipartisan letter to EPA Administrator 
McCarthy expressing our concerns about regulating ammonium 
nitrate under the RMP.
    Cynically, the EPA sent me a response to the letter last 
night. It came in after 6 o'clock last night for today's 9:30 
a.m. hearing after waiting almost a month and a half. The 
letter was signed by today's EPA witness, Mr. Stanislaus.
    Madam Chairman, I ask that my letter and the EPA's response 
be entered into the record.
    Senator Boxer. Without objection.
    [The referenced information follows:]
   
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    Senator Barrasso. Thank you, Madam Chairman.
    My colleagues and I believe that imposing additional 
regulatory burdens on compliant facilities by including 
ammonium nitrate in the EPA's RMP will do nothing to protect 
workers and the public from companies that, either through 
ignorance or for other reasons, avoid compliance with the 
Nation's safety rules.
    The safety and security of our Nation's chemical 
facilities, our workers and our communities is vital. If we 
make a mistake and over regulate a needed chemical needlessly 
for political reasons, we could have a negative impact on 
mining, farming and other commercial operations around the 
Country. The end result will be lost jobs for already 
struggling communities.
    With that, thank you very much, Madam Chairman. I look 
forward to the testimony.
    Senator Boxer. Senator, thank you.
    I just want to make the point that the RMP is the Risk 
Management Plan.
    Senator Barrasso. Yes.
    Senator Boxer. The Administration is saying that if you 
have ammonium nitrite, you ought to have a plan to avoid the 
risk of something happening. You object to putting it in that 
risk management plan?
    Senator Barrasso. I support what OSHA is doing at this 
point.
    Senator Boxer. Thank you very much. That is an important 
point.
    Senator Franken, followed by Senator Crapo.
    Senator Franken. I don't have an opening statement other 
than to say I am happy we are having this hearing today. I look 
forward to hearing the testimony and asking some questions.
    Senator Boxer. Senator, thank you so much.
    Senator Crapo.
    Senator Crapo. Thank you, Madam Chairman.
    I don't have an opening statement either. I look forward to 
the testimony.
    Senator Boxer. Senator Murphy, do you have an opening 
statement?
    Senator Murphy. No.
    Senator Boxer. Then we will proceed to our witnesses. We 
will hear first from OSHA, Hon. David Michaels. Welcome, sir.

STATEMENT OF DAVID MICHAELS PH.D., MPH, ASSISTANT SECRETARY OF 
 LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF 
                             LABOR

    Mr. Michaels. Good morning, Chairman Boxer and members of 
this committee. Thank you for holding this important hearing. 
As Assistant Secretary of Labor for OSHA, I am honored to 
testify today about our work improve safety and security of 
chemical facilities across the Country.
    Last week, at a DuPont chemical plant in Texas, four 
workers died, including two brothers, as a result of release of 
a highly toxic methyl mercaptan. This comes in the wake of the 
tragic explosion at the West Fertilizer Company that killed 15 
people last year.
    Unfortunately, disasters like these are far too common. As 
the Chairman noted, in recent years, there have been numerous 
significant process safety-related incidents resulting in more 
than 75 fatalities and hundreds of injuries.
    In an effort to prevent these types of tragedies, President 
Obama issued Executive Order 13650, Improving Chemical Facility 
Safety and Security and to reduce the risks associated with 
hazardous chemicals to workers.
    To accomplish these goals, EPA, DHS and DOL, along with 
other agencies, established an Interagency Working Group. 
Together, we undertook a comprehensive review of chemical 
safety and security programs, engaged in extensive stakeholder 
outreach to solicit feedback and identified best practices.
    Using the information gathered, the Working Group took 
several actions including the creation of a Consolidated 
Federal Action Plan. The details of this plan, along with the 
progress made by the Working Group, are described in the report 
to the President which is summarized in my written statement.
    In my short time before you today, I would like to focus on 
some of OSHA's efforts.
    As you know, OSHA has standards requiring employers to 
protect workers at chemical facilities. For example, our 
Process Safety Management Standard, PSM, sets requirements for 
the management of highly hazardous substances.
    Our Explosive and Blasting Agent Standard governs the 
manufacture, storage, sale, transport and use of explosives, 
blasting agents and pyrotechnics.
    Our Flammable and Combustible Liquids standard applies to 
the handling, storage and use of flammable and combustible 
liquids. In addition, we have various emphasis programs to 
address specific hazards. We launched our oil refinery PSM 
program in 2007 following the 2005 BP explosion that killed 15 
workers in Texas City.
    We used our experience under this program to begin a 
similar emphasis program for PSM covered chemical facilities in 
2011.
    OSHA is exploring other actions to improve the safety of 
chemical facilities including changes to our emergency response 
standards, modernizing and updating the PSM standard and 
policies, regulating changes to improve ammonium nitrate safety 
and developing targeted outreach and guidance products. I will 
highlight a few of these efforts and refer you to my written 
statement for further details.
    OSHA is committed to updating and modernizing our PSM 
standard. This was issued more than two decades ago when 
response to disastrous chemical releases in the United States 
and the catastrophe in Bhopal, India, the 30th anniversary of 
which was observed just last week.
    Modernizing the PSM standard will allow us to implement 
advances in industry, recognize best practices and protect 
workers from hazards that currently are not covered. To begin 
this modernization process, OSHA issued a Request for 
Information. Based on the information collected in this 
process, we are considering addressing several issues which are 
detailed in my written statement.
    We have also undertaken initiatives to improve ammonium 
nitrate safety as raised by Senator Vitter. We joined with the 
Agricultural Retailers Association and the Fertilizer Institute 
to distribute a letter providing the industry with information 
on our Explosive and Blasting Agent Standard.
    More recently, we issued guidance to help our compliance 
officers apply all requirements to facilities that store 
ammonium nitrate. We are also in the final stages of forming an 
alliance with the fertilizer industry, emergency response 
organizations and others to promote best practices for ammonium 
nitrate safety.
    Finally, as discussed in my testimony, OSHA has identified 
areas where legislation could significantly improve worker 
protections. These include improving coverage for all emergency 
response workers, many of whom have no OSHA coverage, and 
increasing OSHA Act civil and criminal penalties to serve as 
more credible deterrents as well as to keep up with inflation.
    Frankly, our civil penalties are very low and we have 
virtually no criminal penalties.
    I look forward to working with members of both committees, 
our Federal and State partners and stakeholders to address 
these and other important issues.
    Thank you so much for your commitment to improving chemical 
facility safety and security and for your efforts on behalf of 
America's workers. I would be pleased to answer any questions 
you may have.
    [The prepared statement of Mr. Michaels follows:]
    
    
    
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    Senator Boxer. Thank you, Mr. Michaels.
    Mr. Stanislaus.

STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE 
   OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Stanislaus. Good morning, Chairman Boxer, Chairman 
Casey and members of the committee.
    I am Mathy Stanislaus, Assistant Administrator of the U.S. 
Environmental Protection Agency's Office of Solid Waste and 
Emergency Response.
    I thank you for the opportunity to testify today on our 
urgent efforts to implement the commitments made in the May 
2014 report to the President, Actions to Improve Chemical 
Safety and Security, A Shared Commitment.
    This Administration recognizes the terrible loss suffered 
by families and communities as a result of chemical accidents 
and releases and we are committed to working collaboratively 
with first responders, facility owners, operators, State, local 
and tribal partners and organizations and associations with an 
interest in improving chemical facility safety and security.
    The Administration also recognizes the importance of 
immediate action and the important role safe chemical 
manufacturing plays in the United States.
    In the aftermath of the tragic West, Texas facility 
explosion, the President issued an Executive. The Executive 
Order, as the Chairman recognized, established a Working Group 
chaired by EPA, OSHA and the Department of Homeland Security to 
improve chemical safety and security in coordination with all 
stakeholders. We continue a broad outreach effort. Since the 
Executive Order and the report to the President were issued, we 
have met with hundreds of stakeholders representing local 
communities, local responders, emergency planners, State and 
tribal officials and industry sector officials.
    We know that handling the storage of chemicals presents 
safety and security risks. Events from the past few years have 
resulted in far too many injuries and deaths. Prevention and 
preparedness is an ongoing and evolving process. No one action 
can effectively address chemical safety. We have to address 
chemical safety in a comprehensive, multifold series of 
actions.
    I have walked both sides of chemical facilities. I have 
talked to communities adjacent to chemical facilities. I am 
convinced a significant, primary focus needs to be getting 
critical facility information into the hands of the people who 
need it most, local emergency planners and first responders to 
help them use that information in a way that effectively 
addresses risk by the facility, undertake prevention 
activities, undertake response planning activities to 
effectively respond to chemical facilities.
    We need to ensure the local citizens, who talked to me 
repeatedly around the Country, who need to be engaged in the 
local process to ensure that they are effectively notified to 
participate in the planning process and that they have full 
understanding of evacuation capabilities and where sheltering 
in place is necessary that they are fully informed and 
participate in the process.
    Local communities are at the front line of chemical plant 
safety and they need our help. Again, we are actively engaged 
with all the local responders and local communities with a 
focus on getting them information and enhancing the tools and 
information so they can lead the development of emergency 
response plans which is a central piece of the Emergency 
Planning and Community Right to Know Act.
    In addition, we stood up immediately after the Executive 
Order a pilot program bringing together local officials, 
emergency planners and first responders from State and local 
governments to identify what specific actions can be done on 
the ground to improve safety.
    We have identified a number of actions where we have moved 
forward and operationalized already. It includes sharing 
facility information to inform local emergency planning and 
identifying important chemical facility points of contact to 
support effective local emergency response planning.
    We have worked with the Department of Homeland Security to 
ensure that we identify non-compliers. We have identified non-
compliers and are aggressively moving forward to ensure they 
provide us with process hazard analysis and identify all the 
prevention and response measures necessary to make sure those 
facilities are protected.
    We have issued a Request for Information which is a 
commitment we made to the President to look at various 
components of enhancing and building upon the successes of RMP 
regulation. RMP regulation has not been reviewed for multiple 
decades. Obviously we are aligning especially with OSHA. We 
have joint responsibility to protect workers and communities.
    We know from our experience with the Risk Management and 
Planning Program that safety of chemical plants requires a 
comprehensive approach. A number of the things we identified in 
the Request for Information include things like prevention 
activities which look at, for example, process upsets and near 
misses, widely recognized as the single most important thing to 
prevent catastrophic events.
    We are looking at safer opportunities in chemical plants 
and mechanical integrity of safety-related equipment to prevent 
offsite impacts.
    Madam Chairman, I look forward to your questions.
    [The prepared statement of Mr. Stanislaus follows:]
    
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    Senator Boxer. I am sorry to rush you. I need to go and 
Senator Murphy also. That is why Senator Barrasso had to leave, 
Senator Markey and myself. You may be relieved with that.
    Let me just say for my questions and then I am going to 
hand the gavel to Senator Casey, could you hold up that chart 
again?
    We know that out of all the Executive Orders, only four 
have been completed and those have nothing to do with any 
changes at the plants. As a matter of fact, a plant like West 
is not required to do any new or different and the only things 
that got done were things the agency is doing.
    I value your work and I honor your work but this is 
unacceptable. If you look at the number of days since the West, 
Texas explosion, every other day, essentially, there was an 
accident. This is absolutely outrageous. This happened in 2013 
and all we have going here are a few things you are doing 
interagency.
    I am asking you, Assistant Administrator Stanislaus, and 
Assistant Secretary Michaels, on what date do you commit to 
completing all of the Executive Order directives within your 
agencies' jurisdiction? Give me a date and give me a timeframe 
of when. I would ask Mr. Michaels first?
    Mr. Michaels. Chairman Boxer, our regulatory system, 
speaking from OSHA's point of view, is broken. I cannot tell 
you when we will be able to finish the update of the Process 
Safety and Management standard.
    Senator Boxer. Wait a minute. The President issued an 
Executive Order with deadlines. If you are ignoring that, then 
you are not following the law. If you are broken, that is a 
whole other problem.
    I am asking you what is your goal for finishing this list 
that you have to finish? Will it be before President Obama 
leaves office, will it be done by then?
    Mr. Michaels. Certainly there are many components. We are 
on target to meet our deadlines within the system.
    Senator Boxer. I don't know what the heck your deadlines 
are. I need it in writing. What are your deadlines?
    What about you, Mr. Stanislaus? Can you commit to finish 
what the President ordered you to do?
    Mr. Stanislaus. Absolutely.
    Senator Boxer. When?
    Mr. Stanislaus. In the report to the President, we 
identified a number of very specific milestones. We have 
specific milestones and we are on track on every single item on 
that list with respect to moving forward on guidance, working 
with local responders and providing tools to local responders.
    Senator Boxer. I don't want to hear all this. I know what 
your goals are. When are you going to do it? You had a year's 
worth of meetings in order to figure out what questions you are 
going to ask the public. You haven't even proposed regulations. 
When are you going to propose the regulations?
    Mr. Stanislaus. We are going to propose regulations next 
year. Our plan is to finalize it in 2016.
    Senator Boxer. Early next year?
    Mr. Stanislaus. I will get back with the specific date.
    Senator Boxer. Get that to me.
    Mr. Stanislaus. We committed in the report to the President 
to finalize regulations by the end of this Administration.
    Senator Boxer. OK. Will EPA commit to address ammonium 
nitrate fertilizer hazards under its Risk Management Plan and 
when are you planning to do that?
    Mr. Stanislaus. Ammonium nitrate is one of the items that 
we identified in the Request for Information. We are evaluating 
those comments in terms of whether the best approach to address 
safety is the Risk Management Planning Program or looking at 
OSHA's efforts.
    Senator Boxer. Have you even decided whether ammonium 
nitrate will be included?
    Mr. Stanislaus. We have not.
    Senator Boxer. Why wouldn't you know that is a no-brainer?
    Mr. Stanislaus. Again, we have received lots of comments in 
terms of the best approach. I think we have a shared commitment 
to increase the safety of ammonium nitrate. We are looking at 
the best regulatory approach in addition to complement all the 
other efforts.
    Senator Boxer. Let me just say, you are so concerned, I am 
not talking about you but the agency. It is only OSHA that at 
least has updated and put on their website how you are supposed 
to handle it. You have done virtually nothing on this point.
    Ammonium nitrate is so dangerous. If you are dealing with 
it, as West, Texas is, they haven't been asked to do one thing 
different.
    Speaking for myself, I certainly don't speak for Senator 
Vitter or Senator Barrasso and they don't speak for me, as one 
Senator, my colleague said how important the chemical industry 
is in his State. Yes, the chemical industry is extremely 
important. Let me tell you so are the people.
    We have to protect the people if there are problems and we 
know there are problems because they keep happening. People are 
dying and going to the hospital. Millions of kids live near 
these facilities. Ten million are living in two hazardous 
zones. One in three is living around one hazardous zone. This 
is serious business.
    I am going to hold you to those letters I asked you for. I 
will share them with colleagues. When you opened, you said, we 
have such a sense of urgency. I don't see it. There is a lot of 
talk and there is not any action, except for working between 
the agencies which is great but on the ground, if I had a kid 
who lived in that hazard zone, I would be pulling my hair out 
right now if I was watching this. Take it from me, that is how 
I feel.
    I turn to my colleague, Senator Vitter, and I will turn the 
gavel over to Senator Casey.
    Senator Vitter. I am going to pass for now and allow other 
members to ask questions.
    Senator Casey.
    [Presiding] We want to thank Senator Boxer and others who 
are juggling very difficult schedules on these last days we 
will be in session.
    I am grateful for her leadership on this issue and grateful 
for her sense of urgency because I think that is shared by all 
of us. I know everyone in the room has a concern about this but 
it does get frustrating when people have a sense that the 
Federal Government has a goal but is not moving at the pace at 
which taxpayers and certainly families that will be affected by 
these issues expect us to.
    I am going to be here for a while. I arrived late with all 
of the juggling of schedules. We are going to try to make sure 
that every member who is here and some may be returning has a 
chance to either do an opening and questions or just questions.
    I think Senator Franken was one of the early arrivals. He 
has some questions and I will turn to him and we will go from 
there.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    In 2011, OSHA implemented the National Emphasis Program 
that prioritizes inspection of facilities where workers handle 
highly hazardous material and yet we have had tragedies like 
the recent loss of life at the DuPont chemical plant in La 
Porte, Texas.
    These incidents aren't limited to Texas; they are a 
national problem. It is important that we get this right and 
protect workers.
    I guess my question to you, Mr. Michaels, is, in your 
opinion, what single action by OSHA would help most in 
preventing the next chemical incident that kills someone?
    Mr. Michaels. There obviously are many things we would like 
to see happen but I think one of the primary issues that holds 
us back from protecting workers and encouraging employers to do 
the right thing is our lack of being a credible deterrent 
because of our weak penalty structure.
    The maximum penalty for an OSHA violation, a serious 
violation, is $7,000. A willful or repeated violation is 
$70,000. To a small company, that is a significant deterrent 
but to large employers, especially petrochemical plants, that 
is not even the cost of doing business.
    Our criminal penalties are virtually meaningless. Under the 
OSHA Act, if a worker is killed n association with a willful 
violation, it is a misdemeanor with a maximum 6 months in jail 
against the corporation, rarely against a person. If a worker 
isn't killed, there is no criminal penalty.
    Let me give you an example of the problem we face. A number 
of years ago, there was an explosion at a Delaware oil refinery 
owned by Motiva which is half owned by Shell, half owned by 
Saudi Aramco, a big company.
    Jeff Davis was a worker there. There was explosion with 
sulfuric acid and his body was virtually decomposed. We went in 
there and issued a $175,000 fine, a very small fine. EPA 
followed us because there were fish and crabs that were killed 
and they issued a $10 million fine.
    Can you imagine telling Jeff Davis' wife, Mary, and their 
five kids that the fine for the hazards associated with his 
death was one-fiftieth of the fine associated with killing fish 
and crabs?
    We would be very grateful if Congress would allow us to 
issue penalties at a much higher level because we think that 
would deter employers from allowing these hazards to exist 
because right now our penalty structure isn't effective.
    Senator Franken. That is very interesting. There is no real 
deterrent because at the most, it is a slap on the wrist and 
the highest fines are negligible. May be we should adjust this 
to the size of the operation or something like that or to have 
some flexibility there.
    You talked about Delaware. We have heard about recent 
incidents in Texas, the BP refinery in Texas City, the West 
fertilizer company in West, Texas which killed 15 people, I 
believe, and recently the DuPont chemical plant which killed 
four and two brothers.
    I would like to know what allowed these unsafe working 
conditions to persist. Is the fact we are seeing multiple 
incidents in Texas an anomaly or are there other factors 
specific to Texas such as a more relaxed State regulatory 
environment that has led to these tragedies?
    Mr. Stanislaus. I can't say that I can answer that specific 
question. We have not done a State by State analysis.
    One of the critical items that was identified as we went to 
listening sessions around the Country was information and tools 
for local responders so local responders could identify the 
risk, whether it be a school--are they at risk of an explosion 
and the various actions necessary to protect them.
    It is a national issue. That is one the things we have 
aggressively done, providing, for example, some modeling which 
allows local response officials to identify where a potential 
plume, where an accident occurs, what is the spread of that and 
various actions to prevent risk to those communities.
    Senator Franken. I am out of time but if you will indulge 
me, Mr. Chairman, I just want to follow-up on this issue of 
OSHA regulations and other regulations as administered by 
States.
    Are there differences between State OSHA regulations such 
that we see so many of these happening in Texas? Should we be 
focused on differences in the way States do their OSHA work?
    Mr. Michaels. The answer is, yes, we should be very much 
focused on those differences. Texas actually is a Federal State 
so for worker protection, OSHA is responsible though it is 
noted that Texas is one of the very few States that does not 
have a mandatory workers compensation program.
    One of the options employers have is to actually not get 
workers compensation insurance and I think in some cases, as a 
result of that, they have riskier workplaces. Louisiana and 
Texas, these are the States at the heart of the petrochemical 
industry. I think that is the primary issue we are talking 
about.
    There are 21 States that have their own State plans, 
including Minnesota. OSHA is responsible to make sure that 
those programs are at least as effective as Federal OSHA. We 
have a lot of mechanisms to do that. We have some States which 
I think do a far better job than others and that is of great 
concern.
    The specifics we are talking about here, I don't think that 
is an issue because in Texas that is simply a Federal State. 
State law has very little obligation around worker safety. That 
is not the case with EPA, however.
    Senator Franken. Thank you.
    Thank you, Mr. Chairman.
    Senator Casey. Thank you, Senator Franken.
    I want to thank our witnesses. I will have a few questions 
in a moment but I do want to put my statement in the record. I 
will do this as quickly as I can so we can get back to 
questions and then we will have other members who were here 
that may be returning or other members who may be here over the 
course of the next 45 minutes or so depending on voting.
    First, I want to recall what has been recalled a couple of 
times this morning, what happened April 17, 2013. Thirty tons 
of ammonium nitrate fertilizer detonated during a fire at a 
fertilizer plant in the town of West, Texas, killing at least 
15 people, causing injury to over 200 individuals and damaging 
nearby schools, homes and a nursing home.
    More recently, this past November, four workers died and 
one was injured at a chemical plant in La Porte, Texas after 
the release of a hazardous chemical.
    These terrible incidents have raised concerns about the 
risk posed by similar facilities across the Country. Almost 
every State has some community at risk and in some cases, 
plural communities at risk of experiencing a catastrophic event 
stemming from poorly regulated chemical or ammonium nitrate 
storage facilities.
    This is an issue that affects many workers and many 
communities all across the Country. The Occupational Safety and 
Health Administration, the EPA and the Department of Homeland 
Security play a central role in protecting workers and 
communities across the Country from chemical accidents.
    It is imperative that these agencies work together to 
prevent chemical accidents and keep our workers and communities 
safe by sharing relevant information and ensuring facilities 
are held accountable for complying with applicable regulations.
    I want to recognize and thank the Administration for 
recognizing the severity of these recent disasters and taking 
action by issuing Executive Order 13650 on August 1, 2013, 
directing the aforementioned agencies, OSHA, EPA and Homeland 
Security, to lead an effort to improve operational coordination 
among Federal agencies as well as with State and local partners 
to modernize policies, regulations and standards.
    Additionally, several Members of Congress, including 
Chairman Boxer and I and others have asked the Government 
Accountability Office to look closely for the potential 
regulatory gaps which are often the case, the gaps that leave 
workers and communities inadequately protected against these 
types of catastrophic chemical incidents.
    I applaud the members of the Administration involved in the 
Executive Order working group and the GAO for the work put into 
their final reports. These reports are thorough and include 
great recommendations. Now is the time to roll up our sleeves 
and turn these words into action and have the sense of urgency 
that was articulated by Senator Boxer this morning.
    We know that sometimes reports like this are written, then 
forgotten and never implemented. We have to make sure that does 
not happen in this case. I can assure you that Members of 
Congress in both parties will not forget about this issue. It 
is all too important to our workers, communities and, of 
course, to public safety. We cannot allow Federal agencies to 
forget as well.
    I think the hearing should focus on a number of basic 
issues and priorities. First is to ensure that data collection 
and information sharing issues between and among agencies have 
been identified and that plans are in place and implemented to 
correct these problems.
    Two, we should discuss time lines, you have heard some of 
that already, for implementation of regulatory changes 
recommended by both GAO, as well as the Executive Order work 
group.
    Third would be to determine if any additional executive 
branch or legislative branch actions are needed to ensure the 
safety and security of American workers and communities from 
the dangers associated with hazardous chemicals such as 
ammonium nitrate.
    We all look forward to further exploring what questions 
have already been raised.
    Senator Casey. At this time, I also want to make sure I ask 
unanimous consent to enter the testimony submitted by the 
Chemical Safety Board for the record. Without objection, that 
will be made a part of the record.
    [The referenced information follows:]
    
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    Senator Casey. Mr. Michaels, I want to start with you. By 
way of full disclosure, most of my questions will be directed 
to you. Mr. Stanislaus, I won't let you off the hook and let 
you run because I do want to have a couple of follow-ups with 
you as well.
    Let me start with you, Mr. Michaels, and go through a 
couple of basic issues. The concerns that I have raised and 
those raised in this hearing are not as significant or as 
heightened when you have a company doing the right thing in 
terms of safety and health and protecting workers and the work 
site.
    If you don't have a company or a number of workplaces that 
insist on these tough rules, we have to rely upon what OSHA 
does. In your testimony, you said, ``OSHA doesn't have the 
resources or capacity to inspect all facilities.''
    I noted in your testimony at the bottom of page six, you 
said, ``OSHA has slightly more than 2,000 inspectors to cover 
workplace safety and health in over 7 million workplaces across 
the Country,'' a daunting task by any measure.
    I wanted to ask you a question about the tools available to 
you, the civil and criminal penalties that are available and 
what we can do to strengthen them. First and foremost, with 
regard to the civil and criminal penalties now in place, what 
action should we take to make them a more effective deterrent?
    Mr. Michaels. You are quite correct. We face a daunting 
challenge and we have many tools to encourage employers to do 
the right thing, but in every case, when we look at the United 
States we see there are literally millions of employers and we 
have a relatively small staff.
    An effective deterrent involves having strong penalties. As 
I said in the question from Senator Franken, for many 
employers, our penalties are quite low and really aren't seen 
as being effective.
    I was in a meeting recently with high level executives of 
the chemical industry and one of them said, I look at OSHA as a 
very expensive consultant. They will do an industrial hygiene 
inspection and we may have a penalty of $10,000, $20,000 or 
$30,000. We will learn quite a bit and that will be less 
expensive to us than bringing in an outside industrial hygiene 
firm to do the same work.
    Congress has considered, in a number of pieces of 
legislation, increasing OSHA's penalties. I think that would 
have a very important effect on improving workplaces if 
employers saw the possibility of large penalties if they didn't 
abate hazards before we got there. That is our objective.
    We want employers to make the changes before we inspect, or 
preferably not even have to inspect. The fear of a high penalty 
or the fear, in the most extreme cases, of criminal penalties 
would change the behavior of those employers who aren't doing 
the right thing.
    Obviously, most employers would like to do the right thing, 
but we know that stronger penalties will move them in the right 
direction.
    Senator Casey. Can you give us some examples? Let us take a 
hypothetical. Say you have a plant that has an explosion of 
some dimension. Let us assume it is not as devastating as what 
happened in West, Texas.
    Say there is an explosion and there are a number of 
injuries. Let us say it is limited to injuries that prevent 25 
employees from returning to work right away but they will 
recover and can go back to work.
    In that kind of more scaled down, limited instance where 
you may not have a death or a series of deaths, you may not 
have broad based and severe injuries. Walk us through what 
would be the process and the potential penalties just in that 
limited case.
    Mr. Michaels. Penalties are based on hazards, not on the 
outcome. Obviously, if there are fatalities or injuries, we 
think the likelihood of that hazard being present before that 
explosion was very great. We do the investigation and determine 
whether or not the hazard was there and the gravity of the 
hazard. We can determine the gravity by the impact of the 
explosion and it affects us but it is still limited. For each 
violation, unless we show that it is willful, the maximum 
penalty is $7,000.
    We have had fatalities where we had one violation and then 
if it is a small employer, we reduce that by as much as 60 
percent. Then if they have no history of OSHA inspections, they 
have no bad history, we will reduce it further. This is sadly 
the case. After events where a worker was killed, we will have 
a $3,000 penalty.
    In this explosion, if there was only one violation, we 
might issue a $7,000 penalty. That would be our maximum 
penalty. The West fertilizer incident, I don't remember the 
exact amount, but it was a relatively small penalty, well under 
$100,000. I think it was far, far less than that.
    It could be one hazard, one violation that has resulted in 
the plant being destroyed, millions of dollars in damages and 
dozens of people injured. It is very limited, needless to say, 
and it makes us not a credible deterrent.
    Senator Casey. Senator Boozman is here and I want to make 
sure he gets some time. I want to allow him his time and extra 
time if he needs it.
    Let me get back to this because I don't consider what you 
just outlined in any way a deterrent. No, there is not an ounce 
of deterrence in what you just outlined, in my judgment.
    Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman.
    Mr. Stanislaus, does EPA intend to convene a Small Business 
Regulatory Enforcement Fairness Act panel to address small 
business' interest regarding changes to the RMP rule?
    I know we all want things done in a timely manner. The 
other side of that is we want it done right. These are 
difficult things, they are complex and the key is getting 
something done, yet we want the appropriate thing done. Are you 
going to take that step to ensure openness and transparency?
    Mr. Stanislaus. At this point, we are still evaluating the 
100,000 comments and trying to determine which of those 
measures we would move forward and propose regulation and in 
doing so, what impacts small businesses and figure out how we 
can best engage small business.
    We have not made a determination at this point.
    Senator Boozman. I would encourage you to do that. We want 
a good product, we want input from the people who are out 
fighting this battle on every level so that we can have a good 
product.
    What progress is being made by your agencies, this is 
directed to both of you, to help identify outliers, those 
companies that do not participate in the relevant programs of 
industry associations or do not apply generally recognized best 
practices? How many outliers have you identified since the 
West, Texas incident and what steps have your agencies taken to 
help them with compliance?
    Mr. Michaels, did you say there were 7 million businesses?
    Mr. Michaels. Between 7 to 8 million workplace 
establishments.
    Senator Boozman. Of those 7 to 8 million, many are very low 
risk. How many workplaces are there out there you consider high 
risk that need to be more closely watched than others?
    Mr. Michaels. I would have to get back to you with an exact 
number, but we are talking about millions.
    Senator Boozman. That is an important distinction. Out of 
that 7 to 8 million, some of them might be doing routine things 
they should not be doing. There are certainly some industries 
more important with regard to safety than others.
    Mr. Michaels. Absolutely, and we prioritize our inspections 
based on hazards or injury rates. On the other hand, we 
regularly see, fortunately infrequently, fatalities and 
injuries at low hazard workplaces. We have programs that aim at 
different types of workplaces but we cannot ignore them.
    Senator Boozman. I understand.
    Mr. Michaels. We prioritize, obviously.
    Senator Boozman. I understand.
    The other thing that struck me was you mentioned that a 
business essentially said, we are going to have a violation, 
you guys are going to come in and slap them on the wrist, fine 
them or whatever.
    Are we in a situation where these things are so complex 
that a company cannot go to OSHA and understand the rules that 
you don't have to go through some convoluted situation like 
that or you have to hire a team that comes in and costs a 
tremendous amount of money to understand the regulations?
    Can we not get to a situation where companies can actually 
understand these rules without entering something like that?
    Mr. Michaels. Senator Boozman, I am so glad you asked me 
that question.
    We have a program in every State in the Country which 
provides free, onsite inspections without any sort of penalty 
or citation to small and medium-sized employers. We pay 90 
percent of it, the State pays 10 percent. It is located in the 
State to make it clear it is independent from Federal OSHA.
    In some cases, it is the State labor department and in some 
cases it is a university. We strongly encourage employers to 
call them. They get the OSHA inspection and all the information 
without the risk of a citation to absolutely address that. We 
far prefer that is the contact with OSHA rather than having one 
of our inspectors come in and issue citations.
    Senator Boozman. The larger employers?
    Mr. Michaels. We have compliance assistance specialists in 
virtually every one of our offices. We have a tremendous amount 
of information on our website. We get millions of hits every 
year.
    We don't want any hazard to exist because an employer 
doesn't understand the rules or what the hazard is. We really 
go the extra mile to get out that information. We find many 
employers appreciate that and try to do the right thing.
    Some need to be encouraged more strongly. Frankly, the fear 
of inspection gets employers into that system. We like that to 
happen. We like them to get into that system and get that help 
before we inspect.
    Senator Boozman. In regard to the outliers, people who 
aren't following best management practices, can you comment on 
that?
    Mr. Stanislaus. Immediately after the incident in West, 
Texas, EPA and DHS looked at whether there were any outliers 
among our different data bases and we did a cross review. We 
identified 13 facilities that should have filed. We have 
notified them and our regional office is working with them to 
make sure they do the product hazard analysis and all the steps 
to prevent risk.
    The lesson learned from that is we need to automate the 
system. It is called the Federal Registry Service and it 
contains 90 different Federal and State systems. We have 
included all the DHS and CFAS data as we are able to 
automatically look at non-complying facilities. This is a first 
step toward making a more comprehensive, more automated effort 
on non-compliers.
    We also have worked with State and local response officials 
and given them information to identify non-compliers. One thing 
they identified to us is when an enforcement action happens 
among all the chemical facilities, that is the indication to 
them that they should pay attention. We are providing that 
information to them.
    I also want to compliment some of the efforts of some of 
the trade associations. The American Chemistry Council has 
recently begun doing training sessions around the Country, 
inviting both members and non-members. Part of it is education, 
so they are doing it directly.
    We are also providing information to ourselves, through our 
data bases, of the various regulatory responsibilities so 
entities can identify their potential application of existing 
Federal regulations.
    Senator Boozman. Very good.
    Mr. Michaels. You have raised a very tough question, how do 
we identify those companies that aren't following the right 
procedures.
    We start new procedures in that area around safety where we 
are identifying those companies where workers are at high risk 
for severe injury, for example, by having new reporting 
requirements.
    When a worker is seriously injured, starting January 1, 
employers will have to call us and we will go out there, in 
some cases, or get on the phone with them. We are finding, even 
before it begins, when we look at some of our fatalities, some 
of the most serious injuries we hear about, these are from 
companies that were never on our radar. They didn't come up in 
our Dun and Bradstreet searches of these industries.
    When we talk about disasters, the likelihood of an 
explosion or a chemical hazard, that is much tougher because 
you don't have the precursor that we know about. We are working 
with these various industries to identify the characteristics 
we can pick out. If we can do that, we will start doing some 
more inspections but it would be a great challenge to us.
    Places like West Fertilizer were never on our radar screen. 
There are hundreds of places like that. That was probably never 
compared to any of the other ones. It is tough.
    Senator Boozman. Thank you all.
    Again, I am encouraged that industry is working hard, along 
with you, to try and fix these problems. I think that is 
another reason that hopefully we can involve them in the 
rulemaking process, that they are out and about and trying to 
educate. I think they can provide tremendous positive feedback.
    Thank you very much, Mr. Chairman.
    Senator Casey. Thank you very much, Senator.
    I know we have a vote that has started so we will be 
wrapping up soon.
    I have just a few more questions for both of our witnesses.
    Mr. Michaels, I wanted to ask a question about the Process 
Safety Management Standard which, pursuant to your testimony, 
is about 20 years old. In the context of that, can you walk us 
through what gaps exist in our current Process Safety 
Management Standard and how those gaps, if there are, may be 
putting both workers and communities at risk?
    Mr. Michaels. The PSM standard dates back 20 years or a 
little more. We started it quite a bit of time before that.
    Senator Casey. Can you define it so that people know?
    Mr. Michaels. Process safety management is essentially 
dealing with the processing of chemicals. The concern was the 
release of chemicals either in just the form where they can be 
inhaled or released in the situation where there can be an 
explosion or a fire.
    Senator Casey. These standards are a way to manage that?
    Mr. Michaels. Exactly. These are system standards. We don't 
have very specific rules saying this is exactly what you just 
do for each chemical.
    We tell employers they have to evaluate the situation, 
essentially do a process safety analysis to look at what are 
the hazards associated with each chemical, how they are 
addressing it and come up with a plan.
    They have to involve workers in that plan, evaluate that 
plan on a regular basis and make sure it works.
    It is a very good standard but it is outdated. Areas like 
reactive chemicals, for example, we don't have a rule that says 
employers have to look at the potential of different chemicals 
in their system of reacting with each other and then causing a 
new set of hazards.
    Many employers address that. Obviously the ones that know 
what they are doing are very concerned about that and do the 
right thing, but because we don't require it, not every 
employer takes that approach.
    That is one we are looking at. We have asked questions in 
this Request for Information about that. We hope to address 
that based on the information we get.
    Senator Casey. If you can, describe or outline some of the 
potential risks or potential costs of not expediting an update 
to those standards.
    Mr. Michaels. We would like to move as quickly as we can. 
This was something I began to say to Chairman Boxer. The 
regulatory process is very slow. We have a process which 
involves multiple steps and a huge amount of stakeholder input.
    We started the process with this Request for Information. 
We will be doing our small business regulatory fairness 
hearings later on in 2015 where we will involve representatives 
of small business to talk about some of the changes we are 
considering.
    Based on that information, we will then do extensive 
economic and technological analyses to make a proposal. That 
then begins this process where we will have public hearings and 
input. It will take a while.
    Relatively simple standards take 5 years or more and 
complex ones can take more than that. It is a shame. It means 
there is no way we will update this in the next couple of 
years.
    Fortunately, even the process will make things a little bit 
better because employers will get involved and see what they 
need to do, but our ability to enforce stronger standards will 
take, unfortunately, years and maybe even 5 years or more.
    Senator Casey. I know we have to wrap up. I will just ask 
you one more question and then come back to you both for a 
final one.
    In your testimony, looking at page 10 going over to page 
11, you have two itemized potential legislative initiatives to 
improve worker protection. No. 1 is coverage for all workers 
and No. 2 is increasing the penalties. Can you walk through 
those two?
    One of the things we try to do here is elicit testimony 
that will lead us to legislative solutions. We don't believe 
that legislating cures all problems but once in a while we can 
work together on a problem and get it right.
    Mr. Michaels. The major concern that has come up in these 
events and I tried to address in my testimony is OSHA coverage 
of emergency responders. Most of the people killed at West, 
Texas were actually emergency responders and they were 
volunteers.
    I believe at the DuPont facility, we are looking at this 
now, two of the workers who were killed rushed to the scene to 
save the other two people who were there.
    Our coverage of emergency responders is really a patchwork. 
Under Federal law, if you are a State or municipal employee and 
an emergency responder, a firefighter, you have no coverage in 
the Federal States. In Pennsylvania or Arkansas, those workers 
are not covered by Federal OSHA so there is no requirement that 
their employer make the proper planning to make sure they are 
safe.
    In State plans, the State and municipal workers are 
covered. In three Federal States where there are State 
programs, Connecticut, New York and New Jersey, there are 
programs like that as well, and now Illinois as well.
    Volunteers are covered differently. Many of these are 
volunteers. Some States cover volunteers based on their 
definition, others don't. There is some coverage from EPA but 
to come up with a consistent approach to provide OSHA coverage, 
requirements to plan, to train, and to make sure these workers 
have the equipment they need to be safe, would be a tremendous 
advance.
    These workers are heroes and they deserve that. This would 
be an issue for Congress. We would love to work with Congress 
on essentially making this patchwork of coverage one 
comprehensive, modern system. It will make sure emergency 
responders are safe.
    Senator Casey. At the end of your testimony, you said, 
``Ensure full protection of all emergency responders whether 
private sector, public sector or volunteers.''
    Mr. Michaels. That is right.
    Senator Casey. I know you have the section on the penalties 
but because we are short on time, we will leave that for the 
record and have others submitted for the record.
    To wrap up, I have a question for both of you. As we know 
this is a hearing of the Environment and Public Works Committee 
and a subcommittee that I chair on the Health, Education, Labor 
and Pensions Committee, I will chair it for a couple more 
hours.
    If a taxpayer was watching this hearing and knew a little 
bit about the subject matter but knew about what happened in 
West, Texas or other places, was justifiably concerned and even 
frightened by this, what can each of you tell them about what 
is going to happen that is measurable, significant progress in 
the next 6 months from both of your agencies? Can you do that 
in a minute and a half each? In other words, what can we expect 
in the next 6 months?
    Mr. Stanislaus. What we have done and will continue to do 
is inform their local planning and response officials so they 
can identify risk from chemical plants and take actions to 
minimize, prevent or respond to those risks and include local 
citizens in safe evacuations and safe shelter in place. Those 
are critical issues prominently heard throughout the Country.
    Mr. Michaels. From OSHA's point of view, we have just 
released new guidance on the safe handling of ammonium nitrate. 
It is aimed at our staff to make sure we enforce much more 
clearly at all these facilities and now when we start visiting 
these facilities, we will be doing more of that.
    We are also working very closely with trade associations 
and employers to make sure everyone in this industry 
understands exactly what the risks are and what we expect of 
them. We issued this last week and I think we will see some 
real impact over the next few months.
    Senator Casey. I would ask you both to infuse into your 
work the same sense of urgency that you have heard here and as 
articulated by Senator Boxer.
    It is one thing to have us conveying a sense of urgency and 
worry about what might not get done if we don't push, but it is 
even greater outside with taxpayers and folks who are worried 
about this issue. We all have a responsibility and we want to 
make sure we are discharging ours in the oversight capacity.
    Senator, do you have anything before we go?
    Senator Boozman. Mr. Chairman, I would ask unanimous 
consent to include comments from the Agricultural Retailers and 
the Fertilizer Institute in the record.
    Thank you all for being here today.
    Senator Casey. Without objection.
    [The referenced information follows:]
    
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    Senator Casey. Our hearing is adjourned.
    [Whereupon, at 10:45 a.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]
    
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