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HomeMy WebLinkAboutMINUTES - 11052002 - D3 �r TO: BOARD OF SUPERVISORS FROM: Dennis M. Barry, AICP, Community Development Director William Walker, M.D., Health Services Director DATE: November 5, 2002 SUBJECT: Amendment to Industrial Safety Ordinance concerning Contractor Worker Skills Training and Testing, Oil Refinery Safety Training and Skills Testing, Drug and Alcohol Testing, and Contractor Safety Record. SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1. CONSIDER the comments received on the proposed negative declaration for the subject ordinance amending the Industrial Safety Ordinance. 2. ADOPT the proposed negative declaration. 3. INTRODUCE, waive reading and set November 12, 2002 for adoption of the attached ordinance on Contractor Worker Skills Training and Testing, Oil Refinery Safety Training and Skills Testing, Drug and Alcohol Testing, and Contractor Safety Record. 4. DIRECT staff to file the Notice of Determination with the County Clerk. FISCAL IMPACT: No fiscal impact is expected at this time. If additional staff is required to enforce the new requirements of the ordinance, fees will b creased to cover such increased staff costs. r CONTINUED ON ATTACHMENT: XX YES NO SIGNATU RECOMMENDATION OF: •-'COUNTY ADMINISTRATOR; BOARD COMMITTEE APPROVE OTHER SIGNATURES : ACTION OF BOW qNNOVEMBER 5.2002 APPROVED AS RECOMMENDEDX OTHER X SEE ATTACHED UM FOR BOARD ACTION AND VOTES VOTE OF SUPERVISORSSEE ADDENDUM HEREBY CERTIFY THAT THIS IS ATRUE AND CORRECT COPY OF AN ACTION TAKEN AND AYES: ENTERED ON THE MINUTES OF THE BOARD NOES: OF SUPERVISORS ON THE DATE SHOWN. ABSENT: ATTESTED:JOHN SWEETEN,Clerk of the Board ABSTAIN: of Supervisors and County Administrator OfY BY. DEPUTY Contact: Dennis M. Barry, AICP (925/335-1276) cc: Community Development Department Health Services Department (Randy Sawyer) County Counsel Board of Supervisors November 5,2002 Page 2 BACKGROUND/REASONS FOR RECOMMENDATIONS: On September 17, 2002, the Board of Supervisors considered a proposal to amend County Ordinance Code Chapter 450-8 (Industrial Safety Ordinance), to include contractor employee training requirements, and directed staff to return with a revised draft on October 8, 2002. On October 8, 2002, the Board of Supervisors approved in concept, the draft submitted by staff with directions for further modifications. The ordinance submitted with this report provides for the following: 1 . During the first three years of the ordinance, a Stationary Source (refinery) must hire contractors such that 50% of the workers in an Apprenticeable Occupation must either; work for a contractor that has executed an apprenticeship agreement with a bona fide apprenticeship program, or are graduates of an apprenticeship program approved by the California Apprenticeship Council for that Occupation. The draft of the ordinance considered by the Board on October 8, 2002, required that every contractor must either: have executed an apprenticeship agreement with a bona fide apprenticeship program; or 50% of a contractor's workers must have graduated from an apprenticeship program approved by the California Apprenticeship Council. The changes to the ordinance were made in consultation with the chair to address concerns expressed that there should be greater during the interim period. This is consistent with the Board's intent and the draft ordinance has been modified accordingly. Many of the changes required to be made to the October 8, 2002 draft were for the purposes of effectuating this change. For example, in order to assist staff in enforcing this requirement, Stationary Sources and contractors are required to maintain records documenting compliance with this requirement. 2. After three years, a contractor may only employ: A. Journey-level workers who have either: (1) successfully completed all tests necessary to graduate from an apprenticeship program approved by the California Apprenticeship Council (CAC); or(2) obtained a certificate of equivalent training by completing all test (both written exam and a manual skill demonstration) that shows that the skills of the worker are at least the equivalent to an apprenticeship program graduate. (This test must be either: (1) administered by a CAC-approved apprenticeship program; or(2) approved by the CAC and administered in an accredited four-year or two-year public college.) B. Apprentices enrolled in a CAC-approved apprenticeship program for apprenticeable occupations. C. Journey-level workers who have completed at least 20 hours of training skills, construction techniques and safety for that occupation within the last 12 months at a CAC-approved apprenticeship program or at a CAC-approved and accredited four-year or two-year public college. 3. A contractor is required to meet its need for Trained Workers in each Apprenticeable Occupation to the extent that they are available from labor hiring facilities in Contra Costa, Alameda and Solano Counties. If a contractor attempts to obtained Trained Workers from such labor hiring facilities for two business days and is unable to do so, it may hire any worker. In the event of an emergency, the two business day requirement does not apply. 4. Additional requirements are imposed upon Oil Refineries and Oil Refinery contractor employees. Oil Refineries may employ only contractors whose workers have completed the Bay Area Training Corporation (BATC) safety orientation program, which includes an eight (8) hour safety-training course. Lead workers and workers who work Board of Supervisors November 5,2002 Page 3 independently within an Oil Refinery must pass an oil refinery safety skills test program administered by BATC. In addition, all workers must participate and be enrolled in a drug and alcohol testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce, and "for cause" testing. Finally, Oil Refineries must consider a contractor's safety record and shall give last priority to contractors that have been found to have knowingly failed to report a work related injury within the past twelve months. Attachment 1 is the subject ordinance, proposed for introduction by the Board. Attachment 2 is a marked draft of the ordinance, showing changes to the draft considered by the Board on October 8, 2002. Attachment 3 is the initial study and proposed negative declaration for the proposed ordinance. Comments received during the noticed review period are filed with the Clerk of the Board. (Copies of these comments have been or will be provided to the Board.) Staff has carefully analyzed these comments and based on this analysis is of the opinion that the comments do not contain substantial evidence to support a fair argument that an Environmental Impact Report is required. Staff concludes on the basis of its analysis that the comments are generally duplicative, speculative, based upon a misunderstanding of the ordinance, or argumentative against the ordinance. Staff RECOMMENCES that the Board approve the negative declaration, as set forth in the recommendation section of this Board report. Attachment 4 is a chronological table on the public meetings held to review the proposed amendments to the Industrial Safety Ordinance. This chronology was requested by the Board on October 8, 2002. Board Order to Accept Amendments to the ISO November 5,2002 Page 2 FISCAL IMPACT: No fiscal impact is expected at this time. If additional staff need be hired to enforce the new requirements of the ordinance, this will be offset by an increase of fees to the stationary sources covered by the Industrial Safety Ordinance. BACKGROUND/REASONS FOR RECOMMENDATIONS: On June 19, 2001, the Board considered an amendment to the Industrial Safety Ordinance that would give the authority for Health Services to require a stationary source to implement an inherently safer system, when Health Services determined that it is feasible to implement that inherently safer system. At this meeting, the Board directed staff to consider the impact of these requirements and report back to the Internal Operations Committee and the Board. On December 4, 2001, the Board considered the negative declaration and comments on the negative declaration with_responses from Staff (Attachment 2) and the legal opinion (Attachment 3) on the proposed amendment to the Industrial Safety Ordinance that would provide authority for staff to require stationary sources to implement inherently safer systems and the inherently safer systems amendment and at that time directed staff, the Hazardous Materials Commission, and the Public and Environmental Health Advisory Board to consider the following four proposed amendments: • Revise how inherently safer systems would be considered by the stationary sources as proposed by Health Services • Consider a report by Robert Johnson from the Unwin Company on how inherently safer systems would be considered by the stationary sources • Requiring contractor employees to complete a skill apprenticeship program or for journey- level workers to be able to take a California Apprenticeship Council approved test as administered by a four-year public college • Consider revising the Industrial Safety Ordinance to incorporate the Triangle of Protection Program into the ordinance At the September 17, 2001 Board meeting, the Board heard a report by the Hazardous Materials Ombudsman on the four proposed amendments. The Board directed staff to prepare language and to do an initial study under the California Environment Quality Act (CEQA) for amending the Industrial Safety Ordinance to include a new section on contractor training. The Board also directed staff to come back to the Board with the proposed amendment that would give Health Services the authority to require the implementation of an inherently safer system at the same date that the Board would consider amending the Industrial Safety Ordinance for contractor training. Attachment 1 is the amended Industrial Safety Ordinance that would give the authority for Health Services to require the implementation of Inherently Safer Systems when Health Services determined that it is feasible to implement such changes. NOON= On this day, the Board of Supervisors considered introducing the ordinance amending the Industrial Safety Ordinance with regard to contractor training, as directed by the Board of Supervisors on September 17, 2002, and taking related actions; and considered introducing the ordinance amending the Industrial Safety Ordinance (ISO)requirements for Inherently Safer Systems in industrial facilities handling hazardous materials, and taking related actions. Dennis Barry, Community Development Director and Michael Kent,Health Services Department, presented the staff report and recommendations. The Board discussed the matter and heard testimony from the following persons: Anne Quick, 11875 Dublin Boulevard, C-258,Dublin,Associated Builders and Contractors; Brent Babow, California Contractors Alliance; Don Gosney, 929 Lassen,Richmond; Fred Fields, 2191 Piedmont Way, Pittsburg, Boilermakers Local 549; Glen Fuller, 163 Crestview Drive, Orinda; Grace Kong, 220—25th Street, Brentwood; Greg Feere, 935 Alhambra Avenue, Martinez, Contra Costa Building Trades Council; Jim Payne, PACE; John Dalrymple, 1333 Pine Street, Suite E, Martinez; Larry Blevins, 935 Detroit, Concord, Plumbers and Stearnfitters-Local 342; Michael Hernandez, 935 Detroit Avenue, Concord, Plumbers and Steamfitters-Local 342; Mike Yarbrough, 4308 Berryessa Court,Antioch, IBEW Local 302; Norm Hattick, 2493 Wildhorse Drive, San Ramon, California Contractors Alliance; Peter McGraw, 2033 No. Main Street,Walnut Creek, Contra Costa Council; Dale Peterson, 1875 Arnold Drive, Martinez, IBEW Local 302; Robert Fried, California Contractors Alliance; Torn Adams, 126 Valdeflores Drive, Burlingame, Contra Costa Building Trades Council; Tom Baca, 213 Midway Drive, Martinez, Contra Costa Building Trades Council; Tom Weatherford, 261 Arthur Road, Martinez; Tony Spencer, 155 Corporate Place, Vallejo, California Contractors Alliance; Wilfred J. Scott, P.O. Box 1026, Pittsburg,NAACP; The following people submitted speaker cards with written comments:- 1 Geoffrey Robinson, Bingham McCutchen, 1333 N. California Boulevard, Walnut Creek; Michael Cooper, 1455 Sproul Avenue,Napa; Following further Board discussion, Supervisor Gerber moved that the Board(1) declare its intent to adopt the Inherently Safer System(ISS) amendment to the ISO, and(2) direct staff to return with language clarifying that CEQA would not apply in those instances in which Health Services Department staff agrees with a refinery's decision not to implement an ISS. Supervisor DeSaulnier seconded the motion, and added that staff should work with Mr. Adams to develop appropriate language for Board consideration. The vote on the motion was as follows: AYES: Supervisors DeSaulnier, Gerber NOES: Supervisors Gioia, Glover and Uilkema ABSTAIN: None ABSENT: None The motion failed. Supervisor Gioia made the following motion on the amendment to the ISO regarding contractor worker skills training and testing, oil refinery safety training and skills testing, drug and alcohol testing, and contractor safety record: 1. Consider the comments on the proposed negative declaration for the ordinance. 2. Adopt the proposed negative declaration. 3. Correct the ordinance as follows: a. In the last sentence of paragraph(g)(3)(A), after the words"12 months"delete the word"at" and replace it with the words "administered by"; and after the words "Occupation or"delete the word"at" and replace it with the word"by," as follows: (iii) employ only Journey Level Workers in an Apprenticeable Occupation who have completed at least 20 hours of training in skills, construction techniques, and safety for that Occupation within the last 12 months at-administered by a bona fide apprenticeship program for that Occupation, or at-by a four year or a two year public college that is also administering a test approved by the California Apprenticeship Council for a certificate of equivalent training for that Occupation. b. In the last sentence of paragraph(g)(3)(D), after the words"12 months,"delete the word"at" and replace it with the words "administered by"; and after the words"for that occupation" add a comma and the words"or by a four year or a two year public college 2 It- a that is also administering a test approved by the California Apprenticeship Council for a certificate of equivalent training for that Occupation," as follows: "The term"Trained Worker"means (i) during the three years after adoption of this ordinance: a Journey Level Worker who has successfully completed all of the tests required to graduate from an apprenticeship program for that worker's Occupation approved by the California Apprenticeship Council; or(ii)more than three years after adoption of this ordinance: a Journey Level Worker in an Apprenticeable Occupation who has successfully completed all of the tests required to graduate from an apprenticeship program for that worker's Occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in subsection(C) above and, in either case,who has completed at least 20 hours of training in skills, construction techniques and safety for that worker's Occupation within the last 12 months at-administered by a bona fide apprenticeship program for that Occupation, or by a four year or a two year public college that is also administering a test approved by the California Apprenticeship Council for a certificate of equivalent training for that Occupation, or an Apprentice enrolled in an apprenticeship program for that Apprentice's Occupation that has been approved by the California Apprenticeship Council." 4. As corrected, introduce the subject ordinance,waive reading, and fix November 12, 2002, for the date of adoption of the ordinance, it being understood that the ordinance shall be placed on the agenda as a deliberation item, inviting further testimony from the public. 5.The Department of Health Services shall within one year, report to the Board in a public hearing: a. The progress of the development of the test provided under the Certificate of Equivalent Training and the status of any submittals and approvals of these tests by the CAC; b. Progress of the development of the process for the issuance of a Certificate of Equivalent Training by a two-year or four-year public college; and the Board shall determine any appropriate action to take after review of the progress report consistent with the objective of providing a level and fair playing field for all qualified workers. Supervisor DeSaulnier seconded the motion. Supervisor Glover referred to several issues brought up by the Contractors Alliance and requested staff to respond with modifications. 3 The vote on the motion was as follows: AYES: Supervisors DeSaulnier, Gioia, Glover NOES: Supervisors Uilkema, Gerber ABSTAIN: None ABSENT: None 4 ORDINANCE NO. 2002- (CONTRACTOR WORKER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKILLS TESTING, DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended, by adding subdivisions (p)through(u), defining specified terms, to read: (p) "Bay Area Training Corporation Safety Orientation Program"means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an Oil Refinery. (q) "Contractor Covered Worker" means an employee of an Oil Refinery Contractor engaged in new construction, maintenance, repair, or turnaround work at an Oil Refinery involving energized, pressurized, or control systems in the skill areas of electrical, metals, rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program" means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code("NAICS") of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Refinery Contractor"means an independent contractor that provides labor and/or services to Oil Refineries for new construction, maintenance, repair, or turnaround work. (u) "Oil Refinery Safety Skills Test Program"means the Oil Refinery Safety Skills Test Program administered by the Bay Area Training Corporation on the effective date of subdivision(g) of section 450-8.016, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Ords. 2002-_ § 1; 98-48 § 2.) SECTION H. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements, is amended as follows: A. By deleting subsection(11), Contractors, of subdivision(a), Risk Management Program Elements. B. By adding subdivision(g), Contractor Safety, to read: (g) Contractor Safety. (1)Application. This section applies to contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work on or ORDINANCE NO. 2002- '`� November 5,2002 - - i PrTT�C H ME N /0 adjacent to a Covered Process. It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, or other supply services. (2) Stationary Source responsibilities. (A) The Stationary Source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B) The Stationary Source shall inform the contractor of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (C) The Stationary Source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision(a) of this section. (D) The Stationary Source shall develop and implement safe work practices consistent with subsection(2) of subdivision(a) of this section, to control the entrance, presence, and exit of the contractor and contractor employees in Covered Process areas. (E) During the first three years after the effective date of this subdivision the Stationary Source shall hire contractors such that at all times at least 50% of the employees in each Apprenticeable Occupation working for contractors to whom this section applies either(i) work for a contractor who has executed an apprenticeship agreement with a bona fide apprenticeship program for each Apprenticeable Occupation employed by the contractor at the Stationary Source; or(ii) are graduates of an apprenticeship program approved by the California Apprenticeship Council for the Occupation in which the employee is employed at the Stationary Source. (1) The Stationary Source shall maintain records documenting compliance with the provisions of this subdivision. This documentation shall include the names of every employee employed by a contractor to whom this section applies, the dates of employment, the Apprenticeable Occupation in which the employee worked, evidence that the employee worked for a contractor who has executed an apprenticeship agreement with a bona fide apprenticeship program for each Apprenticeable Occupation employed by the contractor at the Stationary Source, and evidence that the employee was a graduate of an apprenticeship program approved by the California Apprenticeship Council The Stationary Source shall provide this documentation to the County when requested by the County in order to verify or audit compliance with this subdivision. (2) Employees who are graduates of or enrolled in a California Apprenticeship Council approved apprenticeship program shall be employed only in the Apprenticeable Occupation for which they were trained or are being trained in the apprenticeship program. The determination of the work included in an Apprenticeable Occupation shall be consistent with the apprenticeship standards ORDINANCE NO. 2002- -2- November 5,2002 for that Occupation approved by the California Apprenticeship Council and the prevailing practice for that Occupation as determined by the Department of Industrial Relations pursuant to Labor Code Section 1770 et seq. (G) The Stationary Source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities) of this subdivision. (H) The Stationary Source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) Contractor responsibilities. (A) Commencing three years after the effective date of this subdivision, each contractor performing work to which this subdivision applies pursuant to subsection (1) of this subdivision shall employ(i) only Journey Level Workers in an Apprenticeable Occupation who have successfully completed all of the tests required to graduate from an apprenticeship program for that Occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(C)below, of this subdivision, (ii) employ only Apprentices in an Apprenticeable Occupation who are enrolled in an apprenticeship program for that Occupation that has been approved by the California Apprenticeship Council, and(iii) employ only Journey Level Workers in an Apprenticeable Occupation who have completed at least 20 hours of training in skills, construction techniques, and safety for that Occupation within the last 12 months at a bona fide apprenticeship program for that Occupation, or at a four year or a two year public college that is administering a test approved by the California Apprenticeship Council for a certificate of equivalent training for that Occupation. (h3) Each contractor is required to meet its need for workers by hiring Trained Workers in each Apprenticeable Occupation to the extent that Trained Workers are available from labor hiring facilities or offices, hether organized or unorganized, in Contra Costa, Alameda, and Solana Countiesksta, f a contractor attempts to obtain Trained Workers from labor hiring facilities in Contra Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that Trained Workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before Trained Workers. A contractor who hires workers other than Trained Workers shall comply with subsection(G)below, and the contractor shall provide such supplemental supervision as may be necessary for workers other than Trained Workers. (C) A Journey Level Worker may obtain a certificate of equivalent training for an Apprenticeable Occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that Occupation. The test shall be one that is administered by a bona fide ORDINANCE NO. 2002- -3- NoNvmber 5,2002 '7) 3 apprenticeship program for that Occupation or one that has been approved by the California Apprenticeship Council for that Occupation and administered by an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that Occupation. (D)The terms "Apprentice" and"Apprenticeable Occupation" shall have the same meaning in this section as those terms do in the California Labor Code. The term"Occupation"refers to an Apprenticeable Occupation. The term"Journey Level Worker" shall have the same meaning as the term"journeyman" in the California Labor Code. A bona fide apprenticeship program is one that has been approved by the California Apprenticeship Council and that has graduated Apprentices in each of the most recent five years, except,until November 2005, in the case of an apprenticeship program for an Occupation that was determined to be an Apprenticeable Occupation.by the California Division of Apprenticeship Standards within the last nine years, one that has graduated Apprentices in each of the most recent three years. The term"Trained Worker"means (i) during the three years after adoption of this ordinance: a Journey Level Worker who has successfully completed all of the tests required to graduate from an apprenticeship program for that worker's Occupation approved by the California Apprenticeship Council; or(ii)more than three years after adoption of this ordinance: a Journey Level Worker in an Apprenticeable Occupation who has successfully completed all of the tests required to graduate from an apprenticeship program for that worker's Occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in subsection (C) above and, in either case, who has completed at least 20 hours of training in skim, construction techniques and safety for that worker's Occupation within the last 12 months at a bona fide apprenticeship program for that Occupation or an Apprentice enrolled in an apprenticeship program for that Apprentice's Occupation that has been approved by the California Apprenticeship Council. (E) Contractors subject to the requirements of this subdivision shall maintain records documenting compliance with the provisions of this subdivision. This documentation shall include the names of the employees, the dates of employment, the identity of the Stationary Source at which the employee worked,the Apprenticeable Occupation in which the employee worked, evidence that the employee was enrolled in an apprenticeship program as required by this subdivision, evidence that the employee was a graduate of an apprenticeship program as required by this subdivision, and evidence that the employee had completed 20 hours of training within the last 12 months as required by this subdivision. Contractors shall provide this documentation to the County when requested by the County in order to verify or audit compliance with this subdivision. (F) Employees who are graduates of or enrolled in a California Apprenticeship Council approved apprenticeship program shall be employed only in the Apprenticeable Occupation for which they were trained or are being trained in the apprenticeship program. Employees who have obtained a certificate of equivalent training shall be ORDINANCE NO. 2002- -4- November 5,2M2 employed only in the Apprenticeable Occupation in which they received the certificate of equivalent training. The determination of the work included in an Apprenticeable Occupation shall be consistent with the apprenticeship standards for that Occupation approved by the California Apprenticeship Council and with the prevailing practice for that Occupation as determined by the Department of Industrial Relations pursuant to Labor Code Section 1770 et seq. (G) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contractor shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii) The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the Stationary Source including the safe work practices required by subsection (2) of subdivision(a) of this section. (v) The contractor shall advise the Stationary Source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (H) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(A)through(F) of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. (4) Oil Refinery Responsibilities. (A) Safety and Skill Training and Testing. (i) An Oil Refinery shall only employ Oil Refinery Contractors whose Contractor Covered Workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil Refinery Contractors shall require Contractor Covered Workers that work independently within an Oil Refinery and/or who are the lead workers on an Oil Refinery job to have passed the Oil Refinery Safety Skills Test Program. (B) Drub and Alcohol Program. Oil Refinery Contractors shall require their Contractor Covered Workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and"for cause testing," and shall verify that their Contractor Covered Workers are actively enrolled in such program prior to allowing their Contractor Covered Workers to work in any Oil Refinery. (C) Contractor Safety Record. In hiring Oil Refinery Contractors whose Contractor Covered Workers otherwise meet the requirements of this section, an Oil Refinery shall ORDINANCE NO. 2002- November 5,2002 also consider the contractor safety record of the Oil Refinery Contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. If OSHA determines that an Oil Refinery Contractor has knowingly failed to report a work related illness or injury, for a period of twelve months after the date of such OSHA determination, an Oil Refinery shall not hire such Oil Refinery Contractor unless there are no other Oil Refinery Contractors whose Contractor Covered Workers otherwise meet the requirements of this section. (Ords. 2002 § 2, 2000-20 § 1, 98-48 § 2.) SECTION III, SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares its intent (1)that such provision be severable from the remainder of the ordinance, and(2)that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Beard of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] ORDINANCE NO. 2002- -6- November 5,2002 cr2. ORDINANCE NO. 2002- (CONTRACTOR WORKER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKILLS TESTING, DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended, by adding subdivisions (p)through(u), defining specified terms, to read: (p) eBay Area Training Corporation Safety Orientation Program' means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an Oil Refinery. (q) "Contractor Covered Worker"means an employee of an Oil Refinery Contractor engaged in new construction, maintenance, repair, or turnaround work at an Oil Refinery involving energized, pressurized, or control systems in the skill areas of electrical, metals, rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program" means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code("NAICS") of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Refinery Contractor" means an independent contractor that provides labor and/or services to Oil Refineries for new construction, maintenance, repair, or turnaround work. (u) "Oil Refinery Safety Skills Test Program"means the Oil Refinery Safety Skills Test Program administered by the Bay Area Training Corporation on the effective date of it( ) r ' tta &01 tlrilraptcr;as it may be subsequently modified or amended by the Bay Area Training Corporation. (Ords. 2002-_ § l; 98-48 § 2.) SECTION II. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements, is amended as follows: A. By deleting subsection(11), Contractors, of subdivision (a), Risk Management Program Elements. B. By adding subdivision(g), Contractor Safety, to read: (g) Contractor Safety. (1) Application. This section applies to contractors performing ORDINANCE NO. 2002- -1- Final redlined draft,changes to October R,2002 draft A7TA 614 y`N T new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a Covered Process. It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, or other supply services. (2) Stationary Source responsibilities. (A) The Stationary Source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (l3) The Stationary Source shall inform the contractor of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (C) The Stationary Source shall explain to the contractor the applicable provisions of the emergency response program in subsection (12) of subdivision (a) of this section. (I)) The Stationary Source shall develop and implement safe work practices consistent with subsection(2) of subdivision (a) of this section, to control the entrance, presence, and exit of the contractor and contractor employees in Covered Process areas. after theitx d sulav�sx <tho a t su0h that k Oil app�repta p for each at the ;; ada : a _>::,>,. ..: : , plrtrur > i uae ha uta. , � Ud . l►1ts f poent� epprtxceal ptzr such etnr tilpee wlII clrthe 0-i t �x ».::.:. d.i � .etnplerreetzch >::»>' ::«.::.':. l P .:;. ::•..:: �1 � hfbrra App 'f':.::::'..:.:.> .::<:: :. h Stfis ^� � inr' the hyy t �ryr ptipiance rth gip. (2. ).. P `0wc� raduat :d 1 inion lforlch td oar eg ORDINANCE NO. 2002- -2- Final redlined draft,changes to October 8,2002 draft 2., .;:. Tie dot thexk � � txi fi d �tptn'aa b Apprc �� t iegae fsr thatuos d�tci bh 1p�nx �k of (Er) The Stationary Source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities) of this subdivision. (6 ) The Stationary Source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) Contractor responsibilities. (A) Every contractof perfbrinfiig vvork to which this sabdivision applies p=stumt to subsection(i) of this subdivision shaH, dnring the first three years after-tire effective d of t1fis subdivision either(0 have exeented mi appreriticesbip ageement with a bona fi at the Statiot=y So=ce; oT (ii) employ a wotkfbme in wilich 5056 of the workers in e the Stationary Source successfuRy completed aH of the tests required to gtadttate fiom mi apprenticeship \! r program for that Occup ,d by the eafifbrn�m ApprenticesMp eowtcif. ( ) Commencing three years after the effective date of this subdivision, each contractor performing work to which this subdivision applies pursuant to subsection(1) of this subdivision shall employ(i) only Journey Level VG,corkers,in an Apprenticeable Occupation who hav o f y' Oaxlpl d e -t� tAte graduated from an apprenticeship program for that Occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)( ) below, of this subdivision, (ii) employ only Apprentices in an Apprenticeable Occupation who are enrolled in an apprenticeship program for that Occupation that has been approved by the California Apprenticeship Council, and(iii) employ only Journey Level Workers in an Apprenticeable Occupation who have completed at least 20 hours of training in skills, construction techniques, and safety for that Occupation within the last 12 months at a bona,fide apprenticeship program for that Occupation, pr a: pt + tlr : r .:.:...:.: i.;; "+..::';i'i app ;ttppr. �cap -5 el ( E) Each contractor is required to meet its need for workers by hiring Trained Workers in each Apprenticeable Occupation to the extent that Trained Workers are available from labor hiring facilities >: hb `: ad :" <`: ;>"`:'` ;;in Contra g :.::.:...... . .., _ og Costa, Alameda, and Solano Counties. If a contractor attempts to obtain Trained Workers from labor hiring facilities in Contra Costa, Alameda and Solano Counties for two normal ORDINANCE NO. 2002- -3- Final redlined draft,changes to October 8,2002 draft —b-3 business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that Trained Workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before Trained Workers. A contractor who hires workers other than Trained Workers shall comply with subsection below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than Trained Workers. (Cf)) A Journey Level Worker may obtain a certificate of equivalent training for an Apprenticeable Occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that Occupation. The test shall be one that is administered by a bona fide apprenticeship program for that Occupation or one that has been approved by the California Apprenticeship Council for that Occupation and administered by an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that Occupation. (DE) The terms "Apprentice" and"Apprenticeable Occupation" shall have the same meaning in this section as those term do in the California Labor Code. The term "Occupation"refers to an Apprenticeable Occupation. The term"Journey Level Worker"shall have the same meaning as the term"journeyman"in the California Labor Code. A bona fide apprenticeship program is one that has been approved by the California Apprenticeship Council and that has graduated Apprentices in each of the most recent five years, except, until November 2005, in the case of an apprenticeship program for an Occupation that was determined to be an Apprenticeable Occupation by the California Division of Apprenticeship Standards within the last nine years, one that has graduated Apprentices in each of the most recent three years. The term"Trained Worker"means (i) during the three years after adoption of this ordinance: a Journey Level Worker who 4 M.P.0.0d graduate o an apprenticeship program for that worker's Occupation approved by the California Apprenticeship Council; or(ii) more than three years after adoption of this ordinance: a Journey Level Worker in an Apprenticeable Occupation who has .......... q gmd=ttd from an apprenticeship program for that worker's Occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in subsection(YIE7) above and, in either case, who has completed at least 20 hours of training in skills, construction techniques and safety for that worker's Occupation within the last 12 months at a bona fide apprenticeship program for that Occupation or an Apprentice enrolled in an apprenticeship program for that Apprentice's Occupation that has been approved by the California Apprenticeship Council. . 900MMe_nt 4;Q,T: . " ' shall MA, . ............ ORDINANCE NO. 2002- -4- Final redlined draft.changes to October 8,2002 draft 7sr ... : .:.:: : . '. . . dauttxot ► ee withrc :a :; b €vr doo h � s � e � dues eft Viet £ the yer + ticeb tit upat wch thee. rkd ea€ a that theee esnrolled ui 4WO:4 �W p r t t i e tit the 1 . tea xgc�xurn, ..:: did 1 € 2 hq s £ . lit 2�n r t r �? the sub€ pratxt} ctruaentn to CCutityert :. < r to � x z r to W� r•::... 4 0ved:;a txee xc: :au:;sh ]J::b :'e <:1 .: ` < ti the A":. :e c bl > e true ': x:€s the e . f ':' ca met tx . P' •i ,;v:is i:. :'.Y.....:...... .. '. :.:}.}i 'f:i.ii?�..v':: i:::.::::�:i:'::f. :i A. eq�valext traip , ';:':. n� + ili aYa Appt . .._ t1: at< t tbte that .... by ar .:..:::.:+..:. vara teca � hIiA � ldaeat��ns;pt: p T for Cie . ,; (; F) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii)The contractor shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii) The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the Stationary Source including the safe work practices required by subsection (2) of subdivision(a) of this section. (v)The contractor shall advise the Stationary Source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (..H.6) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(14)through ( ) of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. (4) Oil Refinery Responsibilities. ORDINANCE NO. 2002- -5- Final redlined draft,changes to October S,2002 draft (A) Safety and Skill Training and Testing. (i) An Oil Refinery shall only employ Oil Refinery Contractors whose Contractor Covered Workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil Refinery Contractors shall require Contractor Covered Workers that work independently within an Oil Refinery and/or who are the lead workers on an Oil Refinery job to have passed the Oil Refinery Safety Skills Test Program. (B) Drug and Alcohol Program. Oil Refinery Contractors shall require their Contractor Covered Workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and"for cause testing," and shall verify that their Contractor Covered Workers are actively enrolled in such program prior to allowing their Contractor Covered Workers to work in any Oil Refinery. (C) Contractor Safety Record. In hiring Oil Refinery Contractors whose Contractor Covered Workers otherwise meet the requirements of this section, an Oil Refinery shall also consider the contractor safety record of the Oil Refinery Contractor, including three most recent years for each of the contractor's OSHA.defined Total Injury and Illness Incident Rate and Worker'sC mpens tion Experience Modification Date records for the Oil Revery Contractor. i OSSA deter tor€raetar lam " � x :: vM.rk r l t d 1ti €off:€ 1`� Kidd cy t o > :;.. .. ae;n :rs .: ... : ........................... _> : > . . ................ ......................... ..: : #:::::::::.::::::::::::::::::::.:: ...........................................................................QVV ................... (O rds. 2002-_ § 2, 2000-20 § 1, 98-48 § 2.) SECTION III. SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares its intent (1)that such provision be severable from the remainder of the ordinance, and(2) that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. ORDINANCE NO. 2002- -6- Final redlined drat/,changes to October B,2002 draft PASSED on —by the fallowing vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] IIIHAZMA'Iyt DORDvedlined changes to 160102 draft.upd ORDINANCE NO. 2002- - . -7- Final redlined draft,changes to October 8,2002 draft —, w.. �ti. .... LU111111U1flly v11VV1UWoiioEu U11WUtU1 Development Costa ►. ,,�- - Department Counity — County Administration Building 651 pine Street . 4th Floor,North Wing ®' Martinez,California 94555-0095 'hone: (925) 335-1210 NOTICE CSP PUBLIC REVIEW AND NEGATIVE DB iC County File Pursuant to the State of California Public.Resources C the California Environmental Quality Act of 1970"as Community Development Department of Contra Cosi i following project: Consideration of possible changes to the Industrial Sat -..�,.Le,dealing with stationary source contract worker training requirements,contractor selection, contractor responsibilities, contract worker safety and skills training and testing, drug and alcohol testing and safety and skills record keeping: The proposed development will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration maybe reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period-The period for accepting comments on the adequacy ofthe environmental documents extends to 5:00 P.M., October 28, 2002. Any comments should be in writing and submitted to the following address: Name: Michael Henn Community Development Department - --� �- - -� Contra Costa County _ 651 Pine Street,North Wing, 4th Floor Martinez CA 94553 1,riEMUTY Office Hours Monday-Friday: 8:00 a.m. - 5:00 p.m. � ! j Office is closed the 1 st, 3rd &5th Fridays of each month A 7 TAS M F 6 t . It is tentatively expected that the proposed Negative Declaration will be considered at a meeting of the Board of Supervisors on November 5, 2002.If so, the matter will be tentatively scheduled under Public Hearings that begin at approximately 1:00 P.M. The final Board Agenda will be available on the County's Internet Web Page: www.co.contra-costa.ca.us. The hearing is to be held at the McBrien.Administration Building, Roam 107, Pine and Escobar Streets, Martinez Michael Henn Planner cc: Randy Sawyer, CCHS, 925-646-2579 Initial Study And. Proposed Negative Declaration On the Proposed Changes to the Industrial Safety Ordinance Prepared by the Contra Costa County Community Development Department with assistance of the Contra Costa County Health Services Department October 7, 2002 Table of Contents I. Background Page 2 II. Project Description and Summary of Changes Page 5 Major Changes and Potential Impacts Due to Adoption of Specific Changes regarding employee apprenticeship and training, dated 10/1/02. III. Summary Conclusions Page 7 IV. Presentation of CEQA Initial Study Checklist Page 7 V. Notice of Intent to Prepare a Negative Declaration (follows Initial Study,which is separately numbered) Vl. Draft Ordinance No.2002- I Background A. Regulatory History: Chapter 84-63 of the Contra Costa County Ordinance Code was first enacted in 1986 through adoption of Contra Costa County Ordinance 86-100. This Ordinance required certain facilities involving hazardous waste and/or hazardous materials to obtain a land use permit prior to construction of the facility or modification. Chapter 84-63 was amended,with minor changes, in 1990 and 1991.No facilities were actually required to obtain a land use permit under these provisions because the threshold for triggering the land use permit requirement was relatively high. 2 In June 1996, the County adopted Ordinance 96-20, which amended. Chapter 84-63 by introducing a risk-based system for determining which proposed projects must obtain a land use permit.In December 1996,the County adopted Ordinance 9 6-5 0 (commonly referred to as the"Good Neighbor Ordinance'), which further amended Chapter 84-63. On December 15, 1998, the County adopted Ordinance 98-48 (commonly referred to as the Industrial Safety Ordinance"),which repealed Ordinance 96-50;amended Chapter 84- 63, and added Chapter 450-8. In adopting these Ordinances, the County had determined that its actions were exempt from the California Environmental Quality Act(CEQA),relying on the Class 8 Categorical Exemption. On December 16, 1998,the State District Court of Appeal Court overturned the lower court, clearly stating that the County cannot use this exemption for adoption of amendments to Chapter 84- 63. In response to the Stipulated Judgment,in August of 1999 the County re- analyzed the impacts of the pending amendments to the Industrial Safety Ordinance according to the California Environmental Quality Act, issued a Negative Declaration and reconsidered the pending amendments. The Board of Supervisors subsequently adopted Ordinance 98-48. Those changes dealt with Prevention and Emergency Response Programs,Human Factors Programs,Root-Cause Analysis, Safety Plans and Programs, and Increased Regulatory and Public Review. In April of 2002 the Board of Supervisors reviewed the status of a draft ordinance(in-progress) of possible changes to the Industrial Safety Ordinance. The draft was subsequently refined and clarified by work from the Public and Environmental Health Advisory Board(PEHAB) and the Hazardous Materials Commission(IMC). On September 17, 2002 the Board of Supervisors considered the recommendations of PEHAB and HMC and further refined its preferred language.The version arrived at, at the September 17, 2002 Board of Supervisors meeting, as codified by the County Counsel's Office, is now the subject of this document. B. CEQA Process The following discussion constitutes the analysis required by the California Environmental Quality Act. The purpose of this analysis is to determine the impacts of the project on the environment. Adoption of a Negative Declaration or any other CEQA document in itself, does not determine whether a project will be approved,but aids in the planning and decision making process. CEQA requires a lead agency to prepare an EIR for any project that they intend to carry out or approve which"may have a significant effect on the environment"(Pub. Res. Code 21151 (a). Whether an action may have a significant effect on the environment is determined based on substantial evidence. If there is substantial evidence,in light of the whole record before 3 the lead agency,that a project may have a significant effect on the environment"the agency shall prepare a draft Ea' (CEQA Guidelines , 15064 (a) (1). CEQA defines "substantial evidence" as including"fact,a reasonable assumption predicated open fact, or expert opinion supported by fact" (Pub. Res. Code 21080 (e) (1). Conversely, "substantial evidence is not argument, speculation,unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to or are not caused by,physical impacts on the environment." Simply stated, speculative possibilities are not substantial evidence of environmental impact. Guidelines defines a"significant effect on the environment as a"substantial or potentially substantial, adverse change in the environment." The CEQA Guidelines further obligate the Department to prepare a negative declaration if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment. In summary,this initial study has sought to determine if there is substantial evidence that any aspect of this project(as defined below)may cause a substantial, or potentially substantial, adverse change in the physical environment. Throughout this document"significant impact"refers only to "substantial, or potentially substantial,adverse change in the environment,"consistent with the CEQA definition in Section 21068 of the CEQA Guidelines. Where beneficial impacts are likely,this initial study so indicates.However,since the requirement to prepare either a negative declaration study or an environmental impact report is determined by substantial evidence of adverse impacts, staff has not continued to analyze an impact once its impact is determined to'be less than.significant. C. Potential impacts: Consistent with the CEQA guidelines and definition summarized above, this Initial Study will focus on identifying potential significant impacts, i.e., substantial or potentially substantial adverse changes in the physical environment that may be caused by the adoption of the proposed changes. The first step will be to identify the changes in County procedures and requirements that would result by adopting the proposed amendment outlined below. Next the analysis will determine whether the potential impacts would be positive or negative. If the impacts could be negative, the analysis would then determine whether there is substantial evidence that a particular aspect of the project may cause a substantial or potentially substantial adverse impact on the environment.Aspects of the project that clearly could not cause a significant adverse impact will not be evaluated further. 4 D. Determination of the Appropriate Form of Environmental Analysis: If substantial evidence exists that any aspect of the project may cause a potential significant adverse impact to the environment, then staff would determine that an EIR. should be prepared. Consistent with CEQA Guidelines, Section 15063(b)(2),the Department must prepare a negative declaration if there is no substantial evidence that the project, or any aspect of the project,may cause a significant effect on the environment. If no EIR is required,the staff will then determine whether a negative declaration or a mitigated negative declaration should be prepared,to comply with CEQA. II. 'Project Description As explained above,the project evaluated by this Initial Study comprises the following proposed changes in the Contra Costa County Industrial Safety Ordinance(Chapter 450-8). A. Summary of Changes 1. The proposed amendment to the existing Industrial Safety Ordinance would strengthen and clarify safety regulations and contract worker training pertaining to existing stationary sources. It would provide for better-trained workers and provide for an improved contractor selection process so that stationary sources must consider the contractor's safety record. It also allows the use of other trained workers with a demonstrated equivalency in training. If there is a shortage of trained workers, the proposed amendment allows the use of other workers so that there would not be environmental effects resulting from a shortage of workers. It allows for a waiving of the worker training requirements in order to handle emergencies. In the case of petroleum refineries it would require drug and alcohol testing,and additional safety training,testing and record keeping. The changes would apply to existing stationary sources and to any new stationary sources as defined by the ISO. All documents are available at the Contra Costa County Community Development Department, located at 651 Pine Street Martinez,North Wing, Second Floor, contact Michael Henn, 925-335-1204 or Daren Piona, 925-335-1210 . Project Description: This section applies to contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work nn or adjacent to a covered process. However it wouldn't cover contractors providing incidental services which do not influence process.safety, such as janitorial work, food and drink services, laundry, or other supply services. When selecting a contractor, a stationary source will be required to obtain and evaluate information regarding the contractor's past safety performance and programs. Additionally,the stationary source shall inform the contractor of any known potential fire, explosion, or toxic release hazards related to the contractor's work and the process, as well as explain to the contractor the applicable provisions of the emergency response program. 5 Also the stationary source shall develop and implement a safe work practices program which controls the entrance, presence, and exit of the contractor and contractor employees in covered process areas. The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations. For the first three years after enactment, contractors performing work to which this subdivision applies shall either: (1)have executed an apprenticeship agreement with a bona fide apprenticeship program for each apprenticeable occupation employed by the contractor at the stationary source; or(2) employ a workforce in which 50% of the workers in each apprenticeable occupation employed by that contractor at the stationary source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council. The other 50%may be employees of the contractor's choosing. However, after the three year phase-in period,the contractor shall employ workers who, if journey level,have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training. Workers of apprentice level must be enrolled in an apprenticeship program for that occupation that has been approved bythe California Apprenticeship Council. Workers at journey level working in an apprenticeable occupation shall have completed at least 20 hours of training in the skills,construction techniques, and safety for that occupation within the last 12 months at a bona fide apprenticeship program"for that occupation. Each contractor is required to meet his or her need for trained workers under this program,by hiring trained workers if available from labor hiring facilities in Contra Costa,Alameda, and Solan Counties. If a contractor attempts to hire trained workers from Contra Costa, Alameda and Solano Counties for two normal business days and is unsuccessful,he or she may hire other workers,to the extent that trained workers are unavailable. However, in the event of workforce reductions, a contractor shall.lay-offthe other workers before the trained workers. A contractor who hires workers other than trained workers shall provide necessary supervision and safety training. Even if a journey level worker has not gone through the indicated apprenticeship program;he or she may obtain a certificate of equivalent training for an apprenticeable occupation by completing a written and manual skills test, confirming that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that occupation. A bona fide apprenticeship program for that occupation shall administer the test. Alternatively, if the test has been approved by the California Apprenticeship Council for that occupation, it may be administered by an accredited four or two year public college with adequate facilities for both the written and manual portions of the test. The new regulations will assure that the apprenticeship program is one that has been approved by the California Apprenticeship Council and that has graduated apprentices in each of the most recent five years. There is an exception, until 2005 for the case of an apprenticeship program for an occupation that was determined to be an apprenticeable occupation in recent years. Also, journey level workers shall have completed at least 20 hours of training in skills, construction techniques and safety within the last 12 months at a bona fide apprenticeship program for that occupation. 6 The contractor shall assure that each contract employee is trained in the work practices necessary to safely perforin his or her job, including instruction in the known potential fire, explosion, toxic release hazards, and the emergency action plan. Also, the contractor shall document that each contract employee has received the required training and maintain sufficient records for each contract employee. The contractor shall keep the stationary source informed of any unusual hazards related to the contractor's work. The proposed ordinance contains an exception to the hiring and training rules in the case of an emergency. For purposes of this exception an emergency means a sudden,unexpected occurrence, involving a clear and imminent danger,demanding immediate action to prevent or mitigate loss of, or damage to, life,health,property, or essential public services, In addition to these general requirements for all covered stationary sources,there are additional requirements for oil refineries. These requirements cover additional safety and skill training and testing completed at the Hay Area Training Corporation Safety Orientation Program, as well as a requirement for an tail Refinery Safety Skills Test Program. Additionally, oil refinery contractors shall require their contractor-covered workers to participate in a prescribed Drug and Alcohol Testing Program that includes pre-employment testing, annual random testing of at least 50% of the workforce and"for- cause"testing. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also consider the contractor safety record of the oil refinery contractor,including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate(EMR)records for the Oil Refinery Contractor. M Summary Conclusions While it is not CEQA's intent to pass judgment on the social or economic merits of a proposed ordinance such as that being considered, County staff finds that there is no substantial evidence of there being potential significant impacts to the environment resulting from adoption of the proposed changes described above IV. Presentation of CEQA Initial Study Checklist (follows) S:\curr-plan\StafReports\ISONegDecIO-7 7 Environmental Checklist Form L Project Title: Initial Study on Proposed Changes to the Contra Costa County Industrial Safety Ordinance 2. Lead Agency Name and Address: Contra Costa County Community Development Department 651 Pine Street,North Wing-4th Floor Martinez, CA 94553 3. Contact Person and Phone Number: Michael Henn, (425)335-1204 4. Project Location: Contra Costa County 5. Project Sponsor's Name and Address: n.a. 6. General Plan Designation: n.a. 7. Zoning: Any non-agricultural zoning district 8. Description of Project: Minor revision to the existing Industrial Safety Ordinance to provide for improved contractor selection, and for training for workers employed by contractors, while assuring that there are adequate means available to secure a sufficient number of workers in the case of emergencies or a shortage of local workers. 9. Surrounding Land Uses and Setting: n.a 10. Other public agencies whose approval is required(e.g.,permits,financing approval,or participation agreement). None ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project,involving at least one impact that is a"Potentially Significant Impact" as indicated by the checklist on the following pages. Land Use and Planning _ 'Transportation/ — Public Services Population&Housing Circulation — Utilities &: Service Geological Problems i Biological Resources Systems Water — Energy & Mineral — Aesthetics Air Quality Resources i Cultural Resources Mandatory Findings of — Hazards Recreation Significance r Noise — No Significant Impacts Identified 1 2 DETERNI1NATICN On the basis of this initial evaluation: X I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment,there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A MITIGATED NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed proj ect MAY have a significant effect(s)on the environment,but at least one effect(1)has been adequately analyzed in an earlier document pursuant to applicable legal standards, and (2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a "potentially significant impact" or "potentially significant unless mitigated." An ENVIRONMENTAL IMPACT REPORT is required,but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects(a)have been analyzed adequately in an earlier EIR pursuant to applicable standards and(b)have been avoided or mitigated pursuant to that earlier.EIR, including revisions or mitigation measures that are imposed upon the proposed project. l Signature Date D 71D 2- cjiae ICCC Community Development Department Printed Name For 2 3 SOURCES In the process of preparing the Checklist and conducting the evaluation,the following references(which are available for review at the Contra Costa County Community Development Department, 651 Pine Street 5th Floor-North Wing, Martinez)were consulted: 1. Contra Costa Resource Mapping System-Quad Sheet Panels - CA 2. The County General Plan and EIR on the General Plan particularly the Safety Element, pp. 10-1 through 10-68. 3. Contra Costa County Zoning Maps 4. Project Description,and recommendations of the PEHAB, and HMC,2002 5. Report by James Rebitzer,Ph.D.,Insufficient Training by Contract Workers in Petrochemical Plants, Case-Western University, 2002 6. Causes of Underreporting of Job Injuries,Juliann Sum,J.D.,M.S.U.C.Berkeley,2002. 7. Complying With EPA's Risk Management Program,Chemical Health and Safety,American Chemical Society, 1996. 8. Consequences of a Failed IR System: Contract Workers in the Petrochemical Industry, Thomas A. Kochan,John C.Wells,Michal Smith, Sloan Management Review, Summer 1992,p. 79-89. 9. Job Safety and Contract Workers in the Petrochemical Industry, James B.Rebitzer,Industrial Relations,Vol 34,No. 1 (January 1995),p.40-57. 10. Human Resource Strategies and Contingent Workers: The Case of Safety and Health in the Petrochemical Industry,Thomas A.Kochan,Michal Smith,John C.Wells,"and James B. Rebitzer,Human Resource Management, Vol 33 (Spring 1994)p.55-77. 11, Occupational Injury and Illness Surveillance: Conceptual Filters Explain Underreporting,Lenore S.Azaroff, ScD,Charles Levenstein,PhD, MOH,and David H.Wegman,MD,MPH,American Journal of Public Health, September 2002,Vol. 92,No.9,p. 1421-1429. 12. Managing Workplace Safety and Health: The Case of Contract Labor in the U.S. Petrochemical Industry,John Calhoun Wells,Thomas A.Kochan, Michal Smith, John Gray Institute,July 1991. 13. Accidental Release Prevention Requirements:Risk Management Programs Under Clean Air Act Section 112(r)(7),Preamble,40 CFR Part 68,p. 96. EVALUATION OF ENVIRONMENTAL RAPACTS: Potentia9y Sipificant Potentialy Unless cess than Significant Mitigation Significant No t be=oratim 1=&C It= I. AESTHETICS. Would the proposal: a. Have a substantial adverse effect on a X scenic vista? b. Substantially damage scenic resources, _ _X including,but not limited to,trees,rock 3 4 outcroppings, and historic buildings within a state scenic highway? C. Substantially degrade the existing —X— visual -visual character or quality of the site and its surroundings? d. Create anew source of substantial light _ rr _X or glare which would adversely affect day or nighttime views in the area? SLgvB4ARY: The changes proposed would affect the training of temporary contract employees used by stationary sources to perforin new constriction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to covered processes. From an analysis of the draft ordinance and of the industrial facilities to which the training regulations would apply, there is no substantial evidence that the proposed changes which affect worker training and safety would have any reasonable probability of significant adverse impacts on the environment in the area of aesthetic impacts,resulting from the changes. (Source#1,3 &4) R. AGRICULTURAL RESOURCES:In determining whether impacts to agricultural resources are significant environmental effects,lead agencies may refer to the California.Agricultural Land Evaluation and Site Assessment Model(1997) prepared by the California Dept. Of Conservation as an optional model to use in assessing impacts on agricultural and farmland. Would the project: a. Convert Prime Farmland,Unique Farmland, X or Farmland of Statewide Importance (Farmland),as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use? b. Conflict with existing zoning for X agricultural use, or a Williamson Act contract? C. Involve other changes in the existing X environment which, due to their location or nature, could result in conversion of Farmland, to non-agricultural use? SLAV1MAkY: The proposed changes would not apply to properties in agricultural zoning or use.Therefore there would be no adverse environmental impact in the area of agricultural resources. (Source#3 &4) M. AIR QUALITY. Where available,the 4 Potentially Significant Potentially Unless Less than Significant Mitigation Significant No kURaCt kMIACI significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: . a. Conflict with or obstruct implementation X of the applicable air quality plan? b. Violate any air quality standard or �. X contribute to an existing or projected air quality violation.? C. Result in a cumulatively considerable X net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard(including releasing emissions which exceed quantitative thresholds for ozone precursors)? I Expose sensitive receptors to substantial r XX pollutant concentrations? e. Create objectionable odors affecting a _ XX substantial number of people? SUli2MARY. The changes proposed would affect the training of temporary contract employees used by stationary sources to perform new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to covered processes. From an analysis of the proposed ordinance and the industrial facilities to which the training regulations would apply, there is no substantial evidence that the proposed changes which affect worker training and safety would have any reasonable probability of causing a significant adverse impacts on the environment in the area of air quality.The changes would improve the level of employee training,and improve the contractor selection process so that stationary sources must consider the contractor's safety record. Additionally,the employee training requirements provide for the use of other available workers if there are not a sufficient number of workers in the normal commute range of the stationary source. Consequently there would be no identifiable effect on air quality resulting from changed commuting patterns that might cause additional vehicle miles traveled (VM'Ts). As such, there would be no reasonable probability of adverse impacts on the environment in the area of air quality resulting from the changes. The probable safety impacts resulting from improved worker training would be a beneficial impact of the changes. (Source# 1, 2,3,4,) 5 Potentially Significant Potentially Unless Less than Significant Mitigation Significant No IMMt v iota imrract et IV. BIOLOGICAL RESOURCES. Would the project: a. Have a substantial adverse effect, either X directly or through habitat modifications, on any species identified as a candidate, sensitive,or special status species in local or regional plans,polices, or regulations, or by the California Department of Fish and Game or U.S.Fish and Wildlife Service? b. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans,policies,regulations or by the California Department of Fish and Game or US Fish and Wildlife Service? G. Have a substantial adverse effect on ,, X federally protected wetlands as defined by Section 404 of the Clean Water Act (including,but not limited to,marsh,vernal pool, coastal, etc.)through direct removal, filling,hydrological interruption, or other means? d. Interfere substantially with the movement _ X of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors,or impede the use of native wildlife nursery sites? e. Conflict with any local policies or __ X ordinances protecting biological resources, such as tree preservation policy or ordinance? f. Conflict with the provisions of an _ x adopted habitat Conservation Plan, Natural Community Conservation Plan, or other approved local,regional,or state habitat conservation plan? SUlVEvLkRY: The changes proposed would affect the training of temporary contract employees used by stationary sources to perform new construction, maintenance or repair, turnaround, major renovation, or 6 Potentially Significant Potentially Unless Less than Significant Mitigation Significant No kmwt incparaJcn a- act specialty work on or adjacent to covered processes.From an analysis of the draft ordinance and the industrial facilities to which the training regulations would apply, there is no substantial evidence that the proposed changes would have any reasonable probability of significant adverse impacts on the environment in the area of biological impacts,resulting from the changes. The impacts from increased worker training and the selection of contractors with better safety records would be beneficial to the biologic resources of the County because of a reasonable probability of a lower accident rate and hazardous releases.(Sources#1, 2, 3, 4) V. CULTURAL RESOURCES. Mould the project: a. Cause a substantial adverse change in the X significance of a historical resource as defined in 315064.5? b. Cause a substantial adverse change in the o X significance of an archaeological resource pursuant to 315064.5? c. Directly or indirectly destroy a unique X paleontological resource or site or unique geologic feature? d. Disturb any human remains, including X those interred outside of formal cemeteries? SUMMARY: The proposed changes would have no effect on cultural resources because the changes would apply to operations at specified stationary sources.The potential construction of a new or expanded stationary source would be a discretionary project subject to a new CEQA assessment and an analysis of that project's potential impacts on cultural resources would be conducted at that time.Any impacts from increased safety and a reduction in accidental releases from the existing stationary sources would be beneficial to any affected cultural resources. (Source# 1,2, &4) VI. GEOLOGY AND SOILS -Would the project? a. Expose people or structures to potential substantial adverse effects,including the risk of loss,injury,or death involving: 1.Rupture of a known earthquake fault, X as delineated on the most recent Alquist- Priolo Earthquake Fault Zoning Map 7 _4S4! Potentially Significant Potentially Unless Less than Significant Mitigation Significant No kmact In�oradM Int-a- t Impact issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Nunes and Geology Special Publication 42. 2. Strong seismic ground shaking? o _ X 3. Seismic-related ground failure,including X liquefaction? 4. Landslides? b. Result in substantial soil erosion or the loss _ X of topsoil? C. Be located on a geologic unit or soil that is _ i X unstable,or that would become unstable as a result of the project, and potentially result in on-or off-site landslide,lateral spreading, subsidence,liquefaction or collapse? d. Be located on expansive soil,as defined in _ X Table 18-1-B of the Uniform Building Code (1994),creating substantial risks to life or prop e. Have soils incapable of adequately supporting ® X the use of septic tanks or alternative waste disposal systems where sewers are not available for the disposal of waste water? SU1VviARY. The changes proposed would affect the training of temporary contract employees used by stationary sources to perform new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to covered processes. From an analysis of the proposed ordinance and the industrial facilities to which the training regulations would apply, there is no substantial evidence that the proposed changes which affect worker training and safety would have any reasonable probability of causing a significant adverse impacts on the environment in the area of geology and soils.The changes would improve the level of employee training, and improve the contractor selection process so that stationary sources must consider the contractors safety record. The probable safety impacts resulting from improved worker training would be a beneficial impact of the changes;consequently the frequency of accidental spills and releases,and any potential effect on the soils or geology in the area of stationary sources would be reduced. As such,there would be no reasonable probability of adverse impacts on the environment in the area of geology and soils resulting from the changes. (Source# 3 & 4) 8 Potentially Significant Potentially Unless Less than Significant Mitiption Significant No Imnact Inc=gratim InZaggt act VII. HAZARDS AND HAZARDOUS MATERIALS Would the project: a. , Create a significant hazard to the public v X or the environment through the routine transport,use, or disposal of hazardous materials? b. Create a significant hazard to the public _ X or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? C. Emit hazardous emissions or handle X hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d. Be located on a site which is included on a X list of hazardous materials sites compiled pursuant to Government Code Section 65862.5 and, as a result, would it create a significant hazard to the public or the environment? e. For a project located within an airport land _ X use plan or,where such a plan has not been adopted,within two miles of a public airport or public use airport,would the project result in a safety hazard for people residing or working in the project area. f. For a project within the vicinity of a private X airstrip,would the project result in a safety hazard for people residing or working in the project area? g. Impair implementation of or physically X interfere with an adopted emergency response plan or emergency evacuation plan? h. Expose people or structures to a significant X risk of loss,injury or death involving wildland, fires,including where wildlands are adjacent to urbanized areas or where residences are 9 Potentially Significant Potentially Unless Less than Significant Mitigation Significant No Imtiact Inuzparatian impact I== intermixed with wildlands? SUNDAARY:The changes proposed would cause the use of better-trained workers,which would reasonably have the effect of reduced incidents involving hazards and release of hazardous materials. The changes would improve the level of employee training,and improve the contractor selection process so that stationary sources must consider the contractor's safety record.As such there would be beneficial changes in the area ofhazards and hazardous materials because of a lower probability of accidental releases and because of improved safety processes and training. The proposed ordinance would require that stationary sources inform the contractors of known hazards and risks related to the contractor's work,and explain to the contractor the applicable provisions of the emergency response program.The stationary sources will be required to develop and implement safe work practices,and control the entrance,presence, and exit of the contractor and contractor employees in covered process areas. The stationary sources shall be required to periodically evaluate the performance of contractors in fulfilling their obligations. The contractor will be required to train contract employees and instruct them regarding known fire, explosion, or tonic release hazards related to his or her job, and document that employees have received the training. The proposed ordinance provides for the opportunity to waive the worker training requirements when workers are needed in the case of an emergency. (Source#2, 4,5, b,8, ,9, 11,& 12) VIS. HYDROLOGY AND WATER QUALITY Would the project: a. Violate any water quality standards or X waste discharge requirements? b. Substantially deplete groundwater supplies X or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level.(e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? C. Substantially alter the existing drainage X pattern of the site or area,including through i the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on-or off-site? d. Substantially alter the existing drainage i X 10 Potentially Significant Potentially Unless Less than Significant Mitigation significant No kMact lu=ora'an Impact bmact pattern of the site or area,including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on-or off-site? e. Create or contribute runoff water which r X would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff? f. Otherwise substantially degrade water X quality? g. Place housing within a 100-year flood X hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h. Place within a 100-year flood hazard area X structures which would impede or redirect flood flows? I. Expose people or structures to a significant i X risk of loss,injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j. Inundation by seiche,tsunami,or mudflow? X SLTIY RY: The changes proposed would affect the training of temporary contract employees used by stationary sources to perform new construction, maintenance or repair, turnaround, major renovation., or specialty work on or adjacent to covered processes. From an analysis of the proposed ordinance and the industrial facilities to which the training regulations would apply, there is no substantial evidence that the proposed changes,which affect worker training and safety,would have anyreasonable probability of causing a significant adverse impacts on the environment in the area of water quality.The changes would improve the level of employee training, and improve the contractor selection process so that stationary sources must consider the contractor's safety record. The probable safety impacts resulting from improved worker training would be a beneficial impact of the changes;consequently the frequency of accidental spills and releases,and any potential effect on the surface water quality or ground water quality in the area of stationary sources would be reduced.As such,there would be no reasonable probability of adverse impacts on the environment in the area of hydrology and water quality resulting from the changes. There would be no effect on drainage water quantity or increased runoff resulting from an increase of 11 potentiany Significant potentiany Unless Less than Significant ]Mitigation Significant No Impact In�cc=oratim kmsact J=act subject to a new CEQA assessment and an analysis of that project's potential impacts on noise would be conducted at that time. Any impacts from increased safety and a reduction in accidental releases from the existing stationary sources would be beneficial to any affected noise receptor. (Source#2&4) XII. POPULATION AND HOUSING Would the project: a. Induce substantial population growth in an X area, either directly(for example,by proposing new homes and businesses) or indirectly(for example,through extension of roads or other infrastructure)? b. Displace substantial numbers of existing o X housing,necessitating the construction of replacement housing elsewhere? C. Displace substantial numbers of people X necessitating the construction of replacement housing elsewhere? SUMMARY: The proposed changes to worker training requirements and contractor selection at designated stationary sources would have no foreseeable impact on population and housing. XIII PUBLIC SERVICES a. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities,need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios,response times or other performance objectives for any of the public services : 1. Fire Protection? _ X 2. Police Protection? _ X 3. Schools? X 4. Parks? X 5. Other Public facilities? X 14 Potentially Significant Potentially Unless Less than Significant Mitigation Significant No Imnact Incc=org�cn I=ac h3plaot SAY: The proposed changes would have no effect on public services at the specified stationary sources.The potential construction of a new or expanded stationary source would be a discretionary project subject to a new CEQA assessment and an analysis of that project's potential impacts on public services would be conducted at that time.Any impacts from increased safety and a reduction in accidental releases from the existing stationary sources would be beneficial to any affected public service provider and to the public. The effect of the changes on emergency services will be beneficial because the changes would increase worker training and provide for consideration of the contractor's safetyrecord in selection of contractors at stationary sources. (Source# 1,2, 3, &4) XIV. RECREATION- a. Would the project increase the use of _ X existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b. Does the project include recreational _ X facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? S1124ARY: The proposed worker training changes to operations at designated stationary sources and provision for consideration of the contractor's safety record in selection of contractors would have no foreseeable impact on recreation. (Source#2,3,&4) XV. TRANSPORTATIONMZAMC!-mould the project: a. Cause an increase in traffic which is _ X substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips,the volume to capacity 15 . �2-- PotentiaIly Significant PotentiaIly Unless Less than Significant Mitigation Significant No lnmact jai orooratian b Mg act ratio on roads, or congestion at intersections)? b. Exceed, either individually or cumulatively, _ X a level of service standard established by the county congestion management agency for designated roads or highways? C. Result in a change in air traffic patterns, X including either an increase in traffic levels or a change in location that results in substantial safety risks? d. Substantially increase hazards due to a design X feature(e.g., sharp curves or dangerous inter- sections)or incompatible uses(e.g.,faun equipment)? e. Result in inadequate emergency access? v X f. Result in inadequate parking capacity? X g. Conflict with adopted policies,plans, or X programs supporting alternative transportation (e.g.,bus turnouts,bicycle racks)? SUNDAARY. The changes proposed would improve employee training and contractor_selection. As such there would be no reasonable probability of adverse impacts on the environment in the area of transportation and traffic resulting from the changes. The impacts from increased safety and a probable reduction in accidental releases would be beneficial to traffic because of reduced levels of use by emergency vehicles. Additionally,the employee training requirements provide for the use of other available workers if there are not a sufficient number of workers in the normal commute range of the stationary source(Contra Costa,Alameda and Solano Counties). Consequently there would be no identifiable effect on transportation facilities resulting from changed commuting patterns that might cause additional vehicle miles traveled(VMTs).As such,there would be no reasonable probability of adverse impacts on the environment in the area of traffic congestion or air quality resulting from the changes. The probable safety impacts resulting from improved worker training would be a beneficial impact of the changes. (Source# 1, 2, 3,4, &5) 16 Potentially Significant Potentially Unless Less than Significant Mitigation Significant No Impact Incornor9Cr hmaig IMRCt XVI. U=IMS AND SERVICE SYSTEMS Would the project: a. Exceed wastewater treatment requirements — _ X of the applicable Regional Water Quality Control Board? b. Require or result in the construction of new — _ X water or wastewater treatment facilities or expansion of existing facilities,the construction or which could cause significant environmental effects? C. Require or result in the construction of new _ X storm water drainage facilities or expansion of existing facilities,the construction of which could cause significant environmental effects? d. Have sufficient water supplies available to _ X serve the project from existing entitlement and resources, or are new or expanded entitlement needed? e. Result in a determination by the wastewater X treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitrnents? f. Be served by a landfill with sufficient r X permitted capacity to accommodate the project's solid waste disposal needs? g. Comply with federal,state and local statutes X and regulations related to solid waste? SLiI1�YY: The proposed changes would have no effect on utilities and service systems at the specified stationary sources.The potential construction of a new or expanded stationary source would be a discretionary project subject to a new CEQA assessment and an analysis of that project's potential impacts on utilities and service systems would be conducted at that time. Any impacts from increased safety and a reduction in accidental releases from the existing stationary sources would be beneficial to any affected public service provider and to the public. (Source# 1,2, &4) 17 Potentially Significant Potentially Unless Lass than Significant Mitigation Significant No Im ut Ing=ork act act XVII. MANDATORY FINDINGS OF SIGNIFICANCE- a. Does the project have the potential to degrade r X the quality of the environment, substantially reduce the habitat of a fish and wildlife species, cause a fish or wildlife population to drop below self-sustaining levels,threaten to eliminate a plant or animal community,reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b. Does the project have impacts that are indiv- _ X idually limited,but cumulatively considerable?� (ACumulatively considerable—=means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects,the effects of other current projects, and the effects of probable future projects)? C. Does the project have environmental effects X which will cause substantial adverse effects on human beings,either directly or indirectly? d. Does the project have the potential to degrade X the quality of the environment,curtail the range of the environment,or to achieve short-term to the disadvantage of long-term environmental goals? SUMN A Y: The proposed amendment to the existing Industrial Safety Ordinance would strengthen and clarify safety regulations and worker training pertaining to existing stationary sources.It would provide for better-trained workers and provide for an improved contractor selection process so that stationary sources must consider the contractor's safety record. It would provide for the use of other workers with a demonstrated equivalency in training,and allow the use of other workers when there is a shortage oftrained workers,so that there would not be environmental effects resulting from a shortage of trained workers.It allows for a waiving of the worker training requirements in order to handle emergencies.The changes would only apply to lands already in industrial use and the effects would be beneficial in regards to public health and safety.(Source#1, 2, 3,4,S, 6, 7, 9& 12) S:\CumntPlanning1S0ln-StdyCk-List10 7 18 ORDINANCE NO. 2002- (CONTRACTOR WORKER SKULLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKULLS TESTING, DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended,by adding subdivisions (p) through (u), defining specified terms, to read: (p) "Bay Area Training Corporation Safety Orientation Program''means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q) "Contractor Covered Worker"means an employee of an oil refinery contractor engaged in new construction,maintenance,repair,or turnaround work at an oil refinery involving energized,pressurized, or control systems in the skill areas of electrical,metals,rotating equipment, and instrumentation. (r) "Drug and Alcohol'Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code("NAICS"} of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Refinery Contractor"means an independent contractor that provides labor and/or services to oil refineries for new construction,maintenance,repair, or turnaround work. (u)"Oil Refinery Safety Skills Test Program"means the oil refinery safety skills test program administered by the Bay Area Training Corporation on the effective date of this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Orris. 2002- § 1; 98-48 § 2.) SECTION II. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements,is amended as follows: A.By deleting subsection(11), Contractors, of subdivision (a),Risk Management Program Elements. B.By adding subdivision (g), Contractor Safety,to read: (g) Contractor Safety. (1)Application. This section applies to contractors performing new construction, maintenance or repair,turnaround, major renovation, or specialty work on or ORDINANCE NO. 2002- -1- October 1,2002 adjacent to a covered process. It does not apply to contractors providing incidental services which do not influence process safety, such as Janitorial work, food and drink services, laundry, or other supply services. (2) Stationary source responsibilities. (A) The stationary source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B) The stationary source shall inform the contractor of the known potential tire, explosion,or toxic release hazards related to the contractor's work and the process. (C) The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision(a)of this section. (D) The stationary source shall develop and implement safe work practices consistent with subsection (2) of subdivision(a)of this section, to control the entrance,presence, and exit of the contractor and contractor employees in covered process areas. (E) The stationary source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities) of this subdivision. (F) The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) Contractor responsibilities. (A)Every contractor performing work to which this subdivision applies pursuant to subsection.(1) of this subdivision shall, during the first three years after the effective date of this subdivision either(i)have executed an apprenticeship agreement with a bona fide apprenticeship program for each apprenticeable occupation employed by the contractor at the stationary source; or(ii) employ a workforce in which 50%of the workers in each apprenticeable occupation employed by that contractor at the stationary source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council. (B)Commencing three years after the effective date of this subdivision, each contractor performing work to which this subdivision applies pursuant to subsection (1) of this subdivision shall employ (i) only journey level workers in an apprenticeable occupation who have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(D)below, of this subdivision, (ii) employ only apprentices in an apprenticeable occupation who are enrolled in an apprenticeship program for that occupation that has been approved by the California Apprenticeship ORDINANCE NO. 2002- -2- October I,2002 Council, and(iii) employ only journey level workers in an apprenticeable occupation who have completed at least 20 hours of tra=— g in skills, construction techniques, and safety for that occupation within the last 12 months at a bona fide apprenticeship program for that occupation. (C)Each contractor is required to meet its need for workers by hiring trained workers in each apprenticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa,Alameda, and Solano Counties. If a contractor attempts to obtain trained workers from labor hiring facilities in Contra Costa,Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs,it may hire other workers only to the extent that trained workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection(F)below, and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (D)A journey level worker may obtain a certificate of equivalent training for an apprenticeable occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona tide apprenticeship program for that occupation. The test shall be one that is administered by a bona fide apprenticeship program for that occupation or one that has been approved by the California Apprenticeship Council for that occupation and administered by an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that occupation. (E)The terms "apprentice" and"apprenticeable occupation"shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation!'refers to an apprenticeable occupation. The term"journey level worker" shall have the same meaning as the term`Journeyman"in the California Labor Code. A bona fide apprenticeship program is one that has been approved bythe California Apprenticeship Council and that has graduated apprentices in each of the most recent five years, except,until November 2005,in the case of an apprenticeship program for an occupation that was determined to be an apprenticeable occupation by the California Division of Apprenticeship Standards within the last nine years, one that has graduated apprentices in each of the most recent three years. The term"trained worker"means (i) during the three years after adoption of this ordinance: a journey level worker who is a graduate of an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council; or(ii)more than three years after adoption of this ordinance: a journey level worker in an apprenticeable occupation who has graduated from an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in subsection(D) above and,in either case, who ORDINANCE NO. 2002- October 1,2002 has completed at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months at a bona fide apprenticeship program for that occupation or an apprentice enrolled in an apprenticeship program for that apprentice's occupation that has been approved by the California Apprenticeship Council. (F) (i)The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contractor shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii)The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee,the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by subsection(2) of subdivision(a)of this section. (v) The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (G) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(A)through(E) of this subdivision. For purposes of this subsection an emergency means a sudden,unexpected occurrence, involving a clear and imminent danger,demanding immediate action to prevent or mitigate loss of, or damage to, life,health,property, or essential public services. (4) Oil Refinery Responsibilities. (A) Safety and Skill Training and Testing. (i)An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii)Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refinery job to have passed the Oil Refinery Safety Skills Test Program. (B)Drug and Alcohol Program. Oil refinery contractors shall require their contractor- covered workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and "for cause testing,"and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also ORDDTANCE NO. 2002- October 1,2002 consider the contractor safety record of the oil refinery contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. (Ards. 2002-_ § 2, 2000-20 § 1, 95-48 § 2.) SECTION III. SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law,the Board of Supervisors declares its intent (1)that such provision be severable from the remainder of the ordinance, and(2)that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] H-a ZMAT%NDORD\flna1 100102 dra8.wpd ORDINANCE NO. 2002- October 1,2002 Schedule of Public Meetings to Amend the Industrial Safety Ordinance for Contractor Training February 26 (HMC Planning and Policy and PEHAB Environmental sub-committees) ■ Begin review of recommendations on contractor training, section 450-8.016A11. March 20 (HMC Planning and Policy and PEHAB Environmental sub-committees) ■ Continue discussion of contractor training recommendations, section 450-8.016A 11. April 17(HMC Planning and Policy committee) ■ Develop position on contractor training recommendations, section 450-8.016A11. March 28 (Full HMC meeting) ■ Report from the Planning and Policy Committee on the contractor training recommendations May 2 (PEHAB Environmental sub-committee) ■ Develop position on contractor training recommendations, section 450-8.016A 11. May 16(full PEHAB meeting) + Vote on recommendations from Environmental sub-committee. May 23 (Full HMC meeting ■ Review and vote on any recommendations made to date by committees. September 17(Board of Supervisor's Meeting) • Report to the Board on the recommendations from the Hazardous Materials Commission and the Public and Environment Health Advisory Boards October 8 (Board of Supervisor's Meeting) • Report to the Board on language to revise the Industrial Safety Ordinance to include a new section on Contractor Training �r� � � MARKED DRAFT ORDINANCE NO. 2000-_ (AMENDING ORDINANCE CODE CHAPTER 450-8, ON INDUSTRIAL SAFETY, REGARDING INHERENTLY SAFER.SYSTEMS AND ACTION ITEMS IDENTIFIED IN PROCESS HAZARD ANALYSES) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. Subdivision (D) of section 450-8.016 of the County Ordinance Code, added by Section II of Ordinance No. 98-48, and amended by Section I of Ordinance No. 2000-20, is amended,by adding subsection(5), to expressly authorize the Health Services Department to review and approve or disapprove a Stationary Sources's determination not to implement an Inherently Safer System or process hazard analysis recommended action item, and by making certain clarifications and correct certain typographical errors, to read: (D) Process hazard Analysis/Action Items. (1) Process hazard analyses will be conducted for each of the Covered Processes not included in the Federal program level 3 Risk. Management Program according to one of the following methods: What-If, Checklist, What- Ifi"CheciClist, Hazard and Operability Study(HAZOP), Failure Mode and Effects Analysis (FMEA), Fault Tree Analysis or an appropriate equivalent methodology approved by the Department prior to conducting the process hazard analysis. The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify, evaluate, and control the hazards involved in the Covered Process. The process hazard analysis shall address: the hazards of the process;the identification of any previous incident which had a likely potential for catastrophic consequences; engineering and administrative controls applicable to the hazards and their interrelationships such as appropriatq application of detection methodologies to provide early warning of releases. .::' "':, detection methods might include process monitoring and control instrumentation with alarms, and detection hardware such as hydrocarbon sensors-); consequences of failure of engineering and administrative controls; Covered Process and Stationary Source siting; Human Factors; and a qualitative evaluation of a range of the possible safety and health effects of failure ofcontrols. All process hazard analyses shall be performed by a team with expertise in engineering and process operations, and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. Also, one member of the team must be knowledgeable in the specific process hazard 1 analysis methodology being used. i (2) The process hazard analyses shall be conducted within l year of the effective date of this Chapter and no later than the submittal date of the Safety Plan. Previously completed process hazard analyses that comply with tlre-California Code of Regulations, Title 8, Section 5189, and/or th-e-California Code of Regulations, Title 19, Section 2760.2 are acceptable for the purposes of this Chapter. Process hazard analyses shall be updated and revalidated at least once ORD. 2000- - MARKED DRAFT every 5 years after completion of the initial process hazard analysis. Updated and revalidated process hazard analyses completed to comply with tin—, California Code of Regulations, Title 8, Section 5189, and/or the-California Code of Regulations, Title 19, Section 2760 are acceptable for meeting the update and revalidation requirement. External events, including seismic events, shall be considered for processes containing a substance defined in thc-California.Code of Regulations, Title 19, Chapter 4.5 1, Section 2770.5, if the distance to the nearest public receptor for a worst case release scenario specified by the California Code of Regulations, Title 19, Chapter 4.5 1, Section 2750.3 is beyond the distance to a toxic or flammable endpoint as defined in California Code of Regulations, Title 19, Chapter 4.5 1, Section 2750.2(a). (3) 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. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent Feasiblc-. If a Stationary Source concludes that an Inherently Safer System is not Ftasiblt,-the basis for this conclusion shall be documented in meaningful detail. This documentation shall include(1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system.is- fi , } tie and(2) the reasons for this conclusion. A claim of"financial infeasibility„ shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. (4) For all Covered Processes, the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. The Stationary Source shall complete recommended actions identified by the process hazard analysis and selected for implementation by the Stationary Source as follows: all actions not requiring a process shutdown shall be completed within one year after submittal of the Safety Plan.; all actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan unless the Stationary Source demonstrates to the satisfaction of the Department that such a schedule is infeasible. For recommended actions not selected for implementation, the Stationary Source shall include the justification for not implementing the recommended action. For all Covered Processes, the Stationary Source shall retain documentation of closure, and any associated justifications, of actions identified by the process hazard analysis. The Stationary Source shall communicate the actions to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. Any documentation justifying a decision,not to implement a process hazard analysis,recommended action shall include(I.)sufficient.evidence to demonstrate to the County's satisfaction that implementing this acticc , and 2 the reasons for this conclusion. A claim of"financial action is; t ( ) infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical. CRD. 2000- 2 .� rr- 2- MARKED DRAFT .01 .........:.:......'. ......��:.�.F. i�....,..:....� $: ' ..�..�, .'. ...:.:i: ...T..� i.....::i::::.,.:.•...:...;..�.::...iii :?n r..::.�:,:.:•.�... :::}:.;':.X.:.:.y:•:(::}}}:.;::.::.�. ;;.?' :.::.:.........:... .+.} •??i:•':i?i•}S}i::>:r:•:•:in:::'.}::}:iii;ii=}}}: ii•}::.;..:., .... .. ..v::•w'.}:•}::..v:::::::::.. ..... ....... ...... ..y;._..:......;r.:........ }}:i .............. .: .i:i•:.; :.t,'.}:•;}.+i:}..✓.:.:.v:?:.::} :•}}} ti4:•;:•.}::•}i?::::::?i•}}:ii:v.ki•::i:":!::..?::..:':`v::•i}'?iS:ii:' _. ............:........:::::: ::::..:...:....:........ .:......:::: .:::.:,.::::::.:::... .................... .:: c . ..d •i::'....yo:.�}.:}':.•..:..:�:.:::?.. :}}' :.:.: .....?:..y...r� ::+}}::�':i:i:l.`•i?::::::;;moi:}D�:•1�4:}}:i: •::k•h�}i�.v.�:::..:v::.�::::::.::tw:::..�::::..v,�::;�v.oP:.:::.�::: •: •'1 ::.;.wy;:.?:.:y::a::::::... ::::::.�e+.:•t•.a:-:.::..:.,. .:::•i:.:; ..;;?; :•:r..:v::.:.+.:::::,•:v...:.. : •\.•:::.�:::is{: •:}•:•:::.::.:.:Y.s:...tv:.:.:.•..Y♦.aw. ai Jud E et :;::.::;::::;:}:it•::}::•::•i:•i"^:':�:i f':v?i;:•:.p}i:::i: :iii`":::.�:.::•ikiJ € : v V � i:• ... .ems +,{yy�p{.( I{y�y,.�y,�y', ..�j' ?:(�.:�.•,I.((��w_,, :q�j.(S�t,,{�.;,.(�}.. v. �[.: (y�..::{��.y,.....::. x� ..:`�v.._�... ..,:..�i::}t�:ipS'•:ii::{i::::ti:1:::is:{}:yy_,pf.:f'.:�?::::':::�:?:iii::i::i::i:'}:.:i}:tS�'}:i:5:'::::gt}:(.:}: ti^.. '.�•::}R•Y1akl:,•:,•�:�,�,•,:•,�•::;k5�1�!;[!•�R!.'k;[1�..::�:•,:=•.'k�'�•�!`I.•[1 �!,§ MP,•;�:�5�::::,�.:,,�,•,:•: i7!.�?.T: ��h4` �'�4'�� �:'�.:...:�Y.k�✓� �_ •.''::l-:i� �•:3.1.+L (Ords. 2000-_ § 1; 2000-20 § l; 98-48, § 2;Health& Saf Code, § 25543.06.) SECTION II. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on , by the following vote: AYES: NOES: ABSENT: ABSTAIN:. .ATTEST: �1 �+_ -_�Clerk of the Board of Supervisors and County Administrator By: Deputy Board Chair [SEAL] LTF H.HAZMATJndord\ord92b00r.wpd i i i ORD. 2000- _ 1 — J o ORDINANCE NO. 2000- (AMENDING ORDINANCE CODE CHAPTER 450-8, ON INDUSTRIAL SAFETY,REGARDING INHERENTLY SAFER SYSTEMS AND ACTION ITEMS IDENTIFIED IN PROCESS HAZARD ANALYSES) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. Subdivision(D) of section 450-8.016 of the County Ordinance Code, added by Section II of Ordinance No. 98-48, and amended by Section I of Ordinance No. 2000-20, is amended, by adding subsection(5), to expressly authorize the Health Services Department to review and approve or disapprove a Stationary Sources's determination not to implement an Inherently Safer System or process hazard analysis recommended action item, and by making certain clarifications and correct certain typographical errors, to read: (D) Process hazard Analysis/Action Items. (1) Process hazard analyses will be conducted for each of the Covered Processes not included in the Federal program level 3 Risk Management Program according to one of the following methods: What-If, Checklist, What- If'Checklist, Hazard and Operability Study(HAZOP), Failure bode and Effects Analysis (FMEA), Fault Tree Analysis or an appropriate equivalent methodology approved by the Department prior to conducting the process hazard analysis. The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify, evaluate, and control the hazards involved in the Covered Process. The process hazard analysis shall address: the hazards of the process; the identification of any previous incident which had a likely potential for catastrophic consequences; engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases (acceptable detection methods might include process monitoring and control instrumentation with alarms, and detection hardware such as hydrocarbon sensors-); consequences of failure of engineering and administrative controls; Covered Process and Stationary Source siting; Human Factors; and a qualitative evaluation of a range of the possible safety and health effects of failure of controls. All process hazard analyses shall be performed by a team with expertise in engineering and process operations, and the team shall include at least one employee who has experience and knowledge specific to the process being evaluated. Also, one member of the team must be knowledgeable in the specific process hazard analysis methodology being used. (2) The process hazard analyses shall be conducted within 1 year of the effective date of this Chapter and no later than the submittal date of the Safety Plan. Previously completed process hazard analyses that comply with California Code of Regulations, Title 8, Section 5189, I and/or California Code of Regulations, Title 19, Section 2760.2 are acceptable for the purposes of this Chapter. Process hazard analyses shall be updated and revalidated at least once every 5 ORD. 2000- � 1 _ _ years after completion of the initial process hazard analysis. Updated and revalidated process hazard analyses completed to comply with California Code of Regulations, Title 8, Section 5189, and/or California Code of Regulations, Title 19, Section 2760 are acceptable for meeting the update and revalidation requirement. External events, including seismic events, shall be considered for processes containing a substance defined in California Code of Regulations, Title 19 Chapter 4.5 1, Section 2770.5, if the distance to the nearest public receptor for a worst case release scenario specified by the California Code of Regulations, Title 19, Chapter 4.5 1, Section 2750.3 is beyond the distance to a toxic or flammable endpoint as defined in California Code of Regulations, Title 19, Chapter 4.5 1, Section 2750.2(a). (3) For all Covered Processes, the Stationary Source shall consider the use of Inherently Safer Systems in the development and analysis of mitigation items resulting fi om a process hazard analysis and in the design and review of new processes and facilities. The Stationary Source shall select and implement Inherently Safer Systems to the greatest extent feasible. If a Stationary Source concludes that an Inherently Safer System is not feasible, the basis for this conclusion shall be documented in meaningful detail. This documentation shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is not feasible, and(2)the reasons for this conclusion. A claim of"financial infeasibility„ shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical. (4) For all Covered Processes,the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. The Stationary Source shall complete recommended actions identified by the process hazard analysis and selected for implementation by the Stationary Source as follows: all actions not requiring a process shutdown shall be completed within one year after submittal of the Safety flan; all actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan unless the Stationary Source demonstrates to the satisfaction of the Department that such a schedule is infeasible. For recommended actions not selected for implementation, the Stationary Source shall include the justification for not implementing the recommended action. For all Covered Processes, the Stationary Source shall retain documentation of closure, and any associated justifications, of actions identified by the process hazard analysis. The Stationary Source shall communicate the actions to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include(1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is not feasible, and(2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical. ORD. 2000- - 2 - (5) The Department shall review and approve or disapprove each determination by a Stationary Source not to implement an Inherently Safer System(subsection (3), above), or a process hazard analysis recommended action.item(subsection(4), above). The Stationary Source shall have the burden of satisfying the Department that the Inherently Safer System or process hazard analysis recommended action item is not feasible. The Department's approval or disapproval of a determination not to implement an Inherently Safer System or a process hazard analysis recommended action item shall include the Department's findings justifying its decision, and shall be included as part of the Final Determination (§ 450-8.018, subdivision (C)). Upon the Department's disapproval of a Stationary Source's determination not to implement an Inherently Safer System or process hazard analysis recommended action item, the Stationary Source shall implement such measure unless it appeals the Final Determination as provided in subdivision(D) of section 450-8.018. ((girds. 2000-_ § 1; 2000-20 § 1; 98-48, § 2; Health,rs'�. Saf. Code, § 25543.06.) SECTION R. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Lantra Costa Times, a newspaper published in this County. PASSED on , by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By: Deputy Board Chair [SEAL] LTF S r:0AZMAnIhdord%ord92600.v pd ORD. 2000- T.T Attachment "133 CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT 651 Pine Street, N. Wing - 4th Floor Martinez, CA 94553 Telephone* : 335-1276 Fax: 335-1299 TO: Internal Operations Committee Supervisor Jahn Gioia, Chair SupervisK-1ayJcPeSauln ier FROM: ennis M. Barry, APP,nCom unity Development Director GATE: October 1, 2001 SUBJECT: CEQA ANALYSIS. OF PROCESS HAZARD ANALYSIS ACTION ITEM AND INHERENTLY SAFER SYSTEMS REQUIREMENTS On September 17, 2001, the Internal Operations Committee received a report from the Community Development Director on the application of the California Environmental Quality Act (CEQA) to the Board's consideration of an amendment to the Industrial Safety Ordinance. The Committee requested a further report on whether the requirements of CEQA would apply to the determinations of the Health Services Department (HSD) contemplated in the proposed amendments to the Industrial Safety Ordinance. Specifically, the Committee. members requested a discussion of (1) whether requiring Inherently Safer Systems would be a "project" subject to CEQA, (2) whether CEQA would still apply if the determination was made not to require Action Items and Inherently Safer Systems as outlined in the proposed amendments, and (3) what sort of CEQA document would likely be required. The proposed amendments would give the HS® authority to require implementation of Process Hazard Analysis Action Items or Inherently Safer Systems (which had been considered and rejected by the stationary source) in its Final Determination under the Industrial Safety Ordinance. Staff is of the opinion that this Final Determination would be a "project" subject to CEQA. By way of background, it should be noted that determination of whether the decision by a local agency is subject to CEQA is governed by State CEQA 1 Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 2 of 8 Guidelines. The CEQA Guidelines dunes "private project" and "project" as fellows: 15377. Private Project A "private project" means a project which will be carried out by a person other than a governmental agency, but the project will need a discretionary approval from one or more governmental agencies for: (a) A contract or financial assistance, or (b) A lease, permit, license, certificate, or other entitlement for use. Note: Authority cited: Sections 21083 and 21087, Public Resources Cade; Reference: Section 21065, Public resources Code . Discussion: This section defines a term to be used in the place of a much longer phrase several places in the statute. In a number of different contents, the statute sets up special requirements that apply by way of a cross-reference to activities which involve the issuance of a lease, license, certificate, permit, or other entitlement for use. It is clearer in these situations to refer to private projects. 15378. Project (a) "Project" means the whole of an action, which has a potential for resulting In either a direct physical change in the environment, or a reasonably foreseeable Indirect physical change In the environment, and that is any of the following: (1) An activity directly undertaken by any public agency Including but not limited to public works construction and related activities clearing or grading of land, Improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700. (2) An activity undertaken by a person which is supported in whole or In part through public agency contacts, grants, Memo to Internal Operations t-ommittee CEQA Analysis of Inherently Safer systems Requirements October 1, 2001 Page 3 of 8 subsidies, loans, or other forms of assistance from one or more public agencies. (3) An activity Involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (b) Project does not include: (1) Proposals for legislation to be enacted by the Mate Legislature; (2) Continuing administrative or maintenance activities,such as purchases for supplies, .personnel related actions, general policy and procedure making (except as they are applied to specific instances covered above); (3) The submittal of proposals to e vote of the people of the state or of a particular community. (Stein vv. City of Santa Monica(1980) 110 Cal.App.3d 458); (4) The creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which,may result In a potentially significant physical impact on the environment. (5) Organizational or administrative activities of governments which are political or which are not physical changes In the environment (such as the reorganization of a school district or detachment of parkland). (c) The term "project" refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term "project" does not mean each separate governmental approval. (d) Where the Lead Agency could describe the project as either the adoption of a particular regulation under subsection (a)(1) or as a development proposal which will be subject to several governmental approvals under subsections (a)(2) or (a)(3), the Lead Agency shall describe the project as the development Memo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 4of8 proposal for the purpose of environmental analysis. This approach will implement the Lead Agency principle as described In Article 4. Note: Authority: sections 21083 and 21087, Public Resources Code; Reference: Section `21065, Public Resources Code; Kaufman and Broad South Bay, Inc v, Morgan Hill Un1f1ed5choo1D1strict(1992)9 Cal.App.4th 464; and Fullerton Joint Unlon High School District v. State Board of Education(1982) 32 Cal.3d 779; Simi Valley Recreation and Park District v. Local Agency f=ormation Commission of Ventura County (1975) 51 Cal.App.3d 648 Discussion: This section provides a more complete explanation of the term "project." This term describes activities which are subject to CEQA. This definition brings together a number'ofseparate provisions In the Act. These are the definition of the term contained In Section 21065 of the statute, the Lead Agency concept In Section 21165 of the statute, and the result of a number of'court decisions interpreting this term. Chapter 1230 of the Statutes of 1994 codifies the emphasis on "physical change" In the environment. Following the State Supreme Courts decision In Friends ofMammoth,the Legislature added a definition of the term "project" to the statute. The definition provided that "project" meant activities directly undertaken by government, activities financed by government, or activities requiring a permit or other approval from government. The Legislature then added the words "or approve" to the section requiring that agencies shall prepare an EIR "ori any project they proposed to carry out or approve which may have a significant effect'on the environment." Reading the language of Sections 21065 and 21100 together,the project which Is to be analyzed in the EIR is not the approval Itself but is that which is being approved. In Livermore v, Local Agency Formation Commission ofAlameda County (1986) 184 Cal. App. 3d 531/(1986) 183 Cal. App. 3d. 681, the court ruled that IAfCO's guideline revisions fit within CEQks broad definition of a project'because they are a discretionary activity of a public agency that will unquestionably have an ultimate Impact on the environment, Le., major policy decisions that determine whether growth will occur in unincorporated areas and whether agricultural land will be preserved or developed. Demo to Internal Operations Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 5 of 8 However, in marked contrast, Northwood Homes, Inc, v Moraga (1989) 216 Cal. App. 3d 1197 concluded that general guidelines enacted as administrative activities for procedural implementation as to definitions of terms and application procedures of land use decisions are not a project. Items (4) and (5) under subsection (b) codify the decisions in Kaufman and Broad-South Bay, Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464 and Simi Valley Recreation and Park District v. Local Agency Formation Commission'of Ventura County (1975) 51 Cal.App.3d 648 .which clarify that CEQA does not apply to activities which do not result, either directly or In a reasonably foreseeable Indirect way, In a physical change to the environment. It is the exercise of discretion by the Health Services department in making its final determination .as to whether or not to require Action Items and/or Inherently Safer Systems that makes the final determination a "project„ subject to CEQA. No public agency may approve or carry out a "project„ subject to CEQA without first complying with the, requirements of the Act, consistent with the adopted Guidelines. The Guidelines are very explicit on this point: 150O4. Time of Preparation (a) Before granting any approval of a project subject to CEQA, every Lead Agency or Responsible Agency shall consider a.final EIR or Negative Declaration or another document authorized by these Guidelines to be used In the place of an EIR or Negative Declaration. (See: The definition of "approval" In Section 15352.) (b) Choosing the precise time. for CEQA compliance Involves a balancing of competing factors. EIRs and negative declarations should be prepared as early as feasible In the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful Information for environmental assessment. (1) With public projects, at the earliest feasible time, project sponsors shall incorporate environmental considerations Into project conceptualization, design, and planning. CEQA .0 2 � =r>2 Memo to Interna! Operations Committee CEQA Analysts of Inherently Safer Systems Requirements October 1, 2001 Page 6 of 8 compliance should be completed prior to acquisition of a site for a public project. (2) To implement the above principles, public agencies shall not undertake actions concerning the proposed public project that would have a significant adverse effect or limit the choice of alternatives or mitigation measures, before completion of CEQA compliance For example, agencies shall not: (A) Formally'make a decision to proceed with the use of a site for facilities which would require CEQA review, regardless of whether the agency has made any final purchase of the, site for these facilities except that agencies may designate a preferred site for CEQA review and may enter into land acquisition agreements when the agency has., conditioned the agency's future use of the site on CEQA compliance. (B) Otherwise tame any .action which gives Impetus to'a planned or foreseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project. (3) 'With private projects, the-lead agency shall encourage the project proponent to Incorporate environmental considerations Into project conceptualization, design, and planning at the earliest feasible time. (c) The environmental document preparation and review should be coordinated In a timely fashion with the existing planning, review, and project approval processes being used by each .public agency. These procedures, to the maximum extent feasible, are to run concurrently, not consecutively. When the lead agency is a state agency, the environmental document shall be included as part of the regular project report If such a report Is used In Its existing review and budgetary process. Note.Authority cited: Sections 21083 and 21087, Public Resources Code; Reference: Sections 21003, 21061 and 21105, Public Resources Code; Memo to Internal Operations -ommittee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page 7 of 8 Friends ofMammoth v Board ofSucervlsors, (1972) 8 Cal.3d 247; Mount Sutro Defense Committee v Regents of the University of California, (1978) 77 Cal.App.3d 20. Discussion:This section codifies the requirement that EIRs and Negative Declarations be prepared before an agency makes a decision on the project and early enough to help Influence the project's plans or design. For EIRs and Negative Declarations to be effective In serving the purposes of CEQA, the preparation of these documents must be coordinated with the planning, review, and approval processes as described In subsection (c). Early preparation Is necessary for the legal validity of the process and for the usefulness of the documents. Early preparation enables agencies to make revisions in projects to reduce or avoid adverse environmental effects before the agency has become so committed to a particular approach that it can make changes only with difficulty. The 1998 amendment clarifies that public agencies must. consider the significant effects of a project before taking actions which may limit their choice of potential project alternatives and mitigation measures. This section also provides examples of how far the agency may proceed in its decision-making prior to Initiating the CEQA process. With respect to inquiry #2, it is not the outcome of the evaluation that requires CEQA compliance; the decision-making is the focus of CEQA compliance. While the Guidelines indicate that the denial of a "project"is not subject to CEQA, any exercise of discretion other than a denial is subject to the previsions of the Act unless it is specifically exempt (as a statutory exemption or a categorical exemption). Therefore, it is the exercise of discretion as to whether or not to require the Action Items and/or Inherently Safer System's which would make the Health Services Final Determination a "project" subject to CEQA not simply the conclusion that such things shall be included. The decision not to require Inherently Safer Systems or Action Items is as much an exercise of discretion as the decision to do so. CEQA's definition of approval may be illustrative: in this regard. 15352. Approval (a) "Approval" means the decision by a public agency which commits the agency to a definite course of action In regard to a project -32 Memo to Internal Operatior is Committee CEQA Analysis of Inherently Safer Systems Requirements October 1, 2001 Page S of 8 Intended to be carried out by any person. The exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances. Legislative action In regard to a project often constitutes approval. (b) With private projects, approval occurs upon the earliest commitment to issue or the :issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, permit,_license, certificate, or other entitlement for use of.the project. Note:Authority cited: Sections 21083 and 21087, Public Resources Code; Reference: Sections 21061 and 21065, Public Resources Code. Discussion. The term "approval" needs definition because the term is critical to the CEQA process. A public agency must comply with CEQA when the agency proposes_to approve some kind'of project. The statute does not define the term, and itis often dlfflcult to identify the time when the project is approved. This section spells out criteria for determining when the approval occurs. With regard to inquiry #3, what form the required environmental document would take (Negative Declaration, Mitigated Negative Declaration Or Environmental Impact Report) would depend upon the results of an Initial Study based upon the particulars of each Individual determina.tion. DMB.gms dmbS\ISO--CEQA 2 IOC 10.1.01 c. County Administrator County Counsel Catherine Kutsurls,Community Development Department 6 Attachment A: Initial Study and Propose legative Declaration 2- Community rv . �I�JI fLrGI Dennis M.Barry,AicP Community Development Director � Costaevelopm�nfi . Department Coun . County Administration Building `J 651 Fine Street �. 4th Floor, North Wing Martinez,California 94553-0095 • --- Phone: (510)335-1208 August 5, 1999 Mr. Denny Larson Communities for a Better Environment 500 Howard Street, Suite 606 San Francisco, CA 94105 Ile: Initial Study, Ordinance 98-48 Notice of Intent to Adopt a Negative Declaration Dear Mr. Larson: Attached is an August 5, 1999 revised Initial Study on Ordinance 98-48 and the four options identified in Item 7 of the Stipulated Judgment. In addition, a Notice of Intent to adopt a ivegative Declaration for this project is also enclosed. Consistent with the requirements of the Stipulated JudgewetU, we have revised the June 7, 1999 Initial Study and determined the nature of the environmental report by August 6, 1999. We are distributing this Notice of Intent to Interested Parties notifying thein that the revised Initial Study and the Negative Declaration are available for their review, inviting their comments by September 15, 1999. Please let me know if you have any questions on the process for making comments on this document. We look forward to your input Sincerely, Debra R. Sanderson, Special Projects Manager cc: Dennis Barry County Counsel Nancy Kaufman Lewis Pascalli Office Hours Monday-Friday:8:00 a.m.-5:00 p.m. Office is closed the 1 st, 3rd&5th Fridays of each month 4 Initial Study and Proposed Negative Declaration on the Adoption of . County ordinance 98-48 and on Stipulated Judgment Items 7(a), (b), and (c) Prepared by the Contra Costa County Community Development Department With assistance of the Contra costa County Health Services Department and the City of Richmond Planning Department August 5, 1999 Initial Study,Ordinance 98-48 August 6.1999 Page 2 Table of Contents I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 11. Project Description:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 A. Summary of Changes B. Chapter 450-8, the Risk Management Program C. Revisions to Chapter 84-63, Land Use Permits D. Applicability to the City of Richmond 111. Major Changes and Potential Impacts . . . . . . . . . . . . . . . . . . ... . .. Page 12 A. Potential Impacts Due to Adoption of Chapter 450-8 . . . . . . . ..Page 12 1. Prevention & Emergency Response Programs 2. Human Factors Program 3. Root-Cause Analysis 4. Safety Plans and Programs 5. Increased Regulatory and Public Review 6. Summary B. Potential Impacts from Proposed Amendments to Chapter 84-63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16 1. Restricting Applicability to Non-agricultural Zoning Districts. 2. Expanding Land Use Permitting Requirements for Additional Types of Projects C. Options Presented in the Stipulated Judgment. . . . . . . . . . . . .Page 22 1. Option 1: Allow County to Mandate Improvements 2. Option 2: Technical Assistance Grants 3. Option 3 &4: Bower the Hazard Score Threshold Comment on the Initial Study Checklist and Overall Conclusions IV. Comments from Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . Page 30 A. Comment Period#1 (April 19 through May 20, 1999) B. Comment Period#2(June 7 through July 7, 1999) V. Summary Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 33 VL Presentation of CEQA Checklist. . . . . . . . . . . . . . . . . . . . . . . . . . . Page 34 VII. Notice of Intent to Prepare a Negative Declaration Attachments: A.- Hazard Score Risk Scenarios, prepared by the Hazardous Materials Comm. B: "Interested Parties" Comment Letters r Initial Study,Ordinance 9848 August a, 1999 Page 3 1. Background A. Regulatory History: Chapter 84.63 of the Contra Costa County Ordinance Code was first enacted iri 1986 through adoption of Contra Costa County Ordinance 86-1001. This Ordinance required certain facilities involving hazardous waste andlor hazardous materials to obtain a land use permit prior to construction of the facility or modification. Chapter 84-63 was amended, with minor changes, in 1990 and 1991. No facilities were actually required to obtain a land use permit under these provisions because the threshold for triggering the land use permit requirement was relatively high. In June 1996, the County adopted Ordinance 96-20, which amended Chapter 84-63 by introducing a risk-based system for determining which proposed projects must obtain a land use permit. In December 1996, the County adopted Ordinance 96-50 (commonly referred to as the"Good Neighbor Ordinance"), which further amended Chapter 84-63 . On December 15, 1998, the County adopted Ordinance 98-48 (commonly referred to as the "Industrial Safety Ordinance"), which repealed Ordinance 96-50, amended Chapter 84-63, and added Chapter 450-8. In adopting these Ordinances, the County had determined that its actions were exempt from the California Environmental Quality Act(CEQA), relying on the Class 8 Categorical Exemption. On December 16, 1998, the State District Court of Appeal Court overturned the lower court, clearly stating that the County cannot use this exemption for adoption of amendments to Chapter 84-63. B. Stipulated Judgment: On April 8, 1999, Contra Costa County and Communities for a Better Environment(CBE) settled a lawsuit over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). The aettlement took the form of a"Stipulated Judgmene in which the County agreed to conduct an environmental review of this ordinance, in accordance with the California Environmental Quality Act(CEQA), with the ordinance remaining in effect pending completion of the environmental review. � I Stipulated Judgment, Corminunities for a Better environment v.County of Contra Costa,et al., Civil No. C99-OW94. a Initial Study,Ordinance 98-48 August 5, '1999 Page 4 Items 4 through 8 of this Stipulated Judgment obligate the County to do the following, as summarized: Item 4: Prepare an initial study within 60 days of this Judgment(by June 7, 1999). tem§: Commence the appropriate environmental analysis within an additional sixty days (by August 6, 1999). ■ It6m 6: Complete the environmental review process within twelve to fifteen months of the Judgment(by April 8 to July 8, 2000), " IWm 7: Evaluate the Industrial Safety Ordinance as well as the four options described in the stipulated Judgment [Items 7(a), (b), and.(c)]. WM 8: Conduct the review of these specified options through ".an inclusive review process involving all interested parties." In addition, the County hoard of Supervisors instructed the Community Development Department[the.Department] to conduct this review in cooperation with the City of Richmond and the County's Hazardous Materials Division of the Health Services Department [HSD]. C. Compliance with the Stipulated Judgement Items 4& 7: The Stipulated Judgement (Item 4) requires the County to"prepare an initial study regarding the adoption of the ISO within sixty(60) daps from entry of judgment." The County has-adopted the following plan to comply with this item: 1. The judgment was entered on April 8, 1999, making the deadline for completing the initial study June 7, 1999. 2. The initial study has focussed on changes due to the adoption of the Industrial Safety Ordinance(Ordinance 98-48), evaluating changes as if Ordinance 98-48 had not yet been adopted. The initial.study,has.also focussed on the four options identified in Item 7 of the Stipulated Judgment. (Item 7) .3. Section 15063(a)of the CEQA Guidelines specifies that the lead agency [in this case Contra Costa County] shall conduct an initial study to determine"if the project may have a significant effect on the environment." If the agency determines that there is"substantial evidence that any aspect of the project may cause a significant effect on the eavironmene, then the y initial Study,Ordinance 98-48 August 5,1999 Wage 5 CEQA Guidelines instruct the {county either to (1)prepare an environmental impact report or(2) use a previously prepared environmental impact report determined by the County to adequately analyze the project.x 4. Section 21068 of the CEQA Guidelines defines a"significant effect on the environment" as a"substantial, or potentially substantial, adverse change,in the environment." The CEQA Guidelines$further obligate the Department to "prepare a negative declaration if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment. In summary, this initial study has sought to determine if there is substantial evidence that any aspect of this project(as defined below) may cause a substantial, or potentially substantial, adverse change in the physical environment. :.e Throughout;this document"significant impact'refers only to "substantial, or potentially substantial,adverse change in the r, environment," consistent with the CEQA definition in Section 21068 of the CEQA Guidelines. Where beneficial impacts are likely, this initial study so indicates. However, since the requirement to prepare either aninitial study or an environmental impact report is determined by substantial evidence of adverse impacts, staff has not continued to analyze an impact once it's impact is determined to be beneficial. Wni 5 of the Stipulated Judgment requires the County to initiate environmental analysis by August 6, 1999. To meet this requirement, by August 6, 1999, the County has, as it considered appropriate, revised the June 7, 1999 Initial Study;however, the County has not revised its Prelirbinary Determination concerning the appropriate form of the environmental review. This action ensures that the appropriate form of environmental analysis would be initiated by this date, if not sooner. U&M- of the Stipulated Judgment requires a review process that includes interested parties. To meet this requirement, the County and City created an extensive mailing list of"Interested Parties,"- invited their written comments at two points during the development of the Initial Study, and invited their participation in two discussion meetings. "Interested Party"comments are presented and summarized in this document and were considered in the preparation,of this Initial Study. Y CEQA Guidelines, Section 15063@3(1.). 3 CEQA Guidelines, Section 15065(b)M. i Initis!Study,Ordinance 98-48 August 5,1999 Page 6 D. Project Definition; On December 16, 1998, the State DiStrict,Court of Appeal overturned the good Neighbor Ordinanee(Ordinance 96-50), the predecessor of the Industrial Safety Ordinance (Ordinance 98.48.) Ordinance 96-50 had repealed and replaced Ordinance 96-20. Since Ordinance 96-60 was overturned, or"set aside," Ordinance 96-20 becomes the predecessor of Ordinance 98-48. As a result, this initial study will evaluate a"project"comprised of(1)those changes that would occur by replacing Ordinance 96-20 with Ordinance 98-48 and(2) the four options identified in Items 7(a), (b);and(c)of the Stipulated Judgment[referred to hereafter as "Item'7 options."] E. Potentia! Impacts: Consistent with the CEQA guidelines and definition summarized above, this Initial-Study will focus owidentifying ying potential significant impacts, ie., substantial or potentially substantial adverse changes in the physical environment that may be caused by the adoption of Ordinance 98-48: The first step will be to identify changes in County procedures and requirements that would result by replacing Ordinance 96-20 with Ordinance 98-48 and by adopting any of the Item 7 options+. Next the analysis will determine whether the potential impacts would be positive or negative. If the impacts could be negative, the analysis would then determine whether there is substantial evidence that a particular aspect of the project may cause a substantial or potentially substantial adverse impact. Aspects ofthe.project that clearly could not cause a significant impact will not be evaluated further. F. Determination,of the Appropriate Form of Environmental Analysis: If substantial evidence exists that any aspect of the project may cause a potential significant adverse impact to the environment, then staff would determine whether an EIR or a Negative Declaration should be prepared. Consistent with CEQA. . . Guidelines, Section If5i063(b)(2), the 37epartment must prepare a negative declaration if there is no substantial evidence that the project, or any aspect of the project, may cause a significant effect on the environment. If no HIR is required, the staff will then determine whether a negative declaration or a mitigated negative declaration should be prepared, to comply with CEQA. 4 Item 7(a), (b), and(c)of the Stipulated Judgment. 7> 2 U ;i;F initial Study,Ordinance 98-48 August S, 1999 Page 7 It. Project Description As explained above, the"project'" evaluated by this Initial Study comprises (1) those changes in Contra Costa County Code that would'occur by replacing Ordinance 96-20 with Ordinance 98-48 and(2) the four"Item 7"options.5 A. Summary of Changes Ordinance 98-48, the Industrial Safety Ordinance, contains two distinct parts. One part would create a new Chapter 450-8, entitled Risk.Management. This chapter would require certain major industrial facilities in the County(1) to implement Safety Programs, (2) to prepare'Safety Plans and to submit them for public and HSI)review. This chapter would also allow the County Health Services Department to audit these Safety Programs and to evaluate major chemical accidents and releases. The other part of Ordinance 98-48 would amend the existing Chapter 84-63, which under Ordinance 96-20 requires land use permits for certain industrial or commercial facilities. These amendments (1) would restrict application of the Ordinance to non-agricultural zoning districts and(2)would include three new categories of development projects that would be required to obtain land use permits, independent of their hazard scores. B. Chapter 450-8, the Risk Management Program Chapter 450-8 seeks to prevent and reduce the probability of accidental releases of regulated substances that have the potential to harm public health and to increase both industry and general public participation in industrial accident prevention. Chapter 450-8 would affect facilities located in unincorporated Contra Costa County that a. Have at least one industrial process covered by the federal "Program 3" regulations (as defined in Title 19 (T19) California Code of Regulations (CCR), Division 2, Chapter 4.5, the CalARP program regulation), and b. Are classified as either 324 (petroleum and coal products manufacturing) or 325 (chemical manufacturing) industrial 51bid. Initial Study,Ordinance 98-48 August 5,1999 Page 8 process under the North American Industrial Classification System (NAILS). Currently, seven facilities in unincorporated Contra Costa County meet these criteria: Tosco Rodeo,Tosco Avon, Air Products (at Martinez Refining Company),Air.Products (at Tosco Avon), Polypure Inc., General Chemical Baypoint, and Martinez Refining Company(MRQ. This new Risk Management Program created by Chapter 450-8 expands on two portions of the existing California Accidental Release Prevention Program (referred to as"CalARP")6. ■ Expanded Prevention and Emergency Response Programs The"Program 3" Prevention Program and Emergency Response Program would be expanded to cover every process in a facility if any process in a facility is covered by CalAR.P"s 'Federal Program 3" requirements Additionally, Chapter 450-8 would impose a deadline (approximately one year) on a company to implement the corrective actions resulting from"process hazard analyses" (FHA's). Chapter 450-8 would also introduce the following new programs, not otherwise required under existing statutes or regulations. ■ A"human factors" program. "Human factors" refer to weakness or deficiencies in a facility's operation that may eventually cause, contribute to, or exacerbate human error that results in a chemical accident or release. Section 450-8.016(B)of the.ordinance requires facilities to develop written human factors programs that address, but are not limited to, elements listed in the ordinance. The ordinance also requires the County Health Services Department to develop or adopt a guidance document that specifies the contents of the human factors program. ■ A'Root-Cause Analysis Program: Chapter 450-8 would require these companies to complete a Root-Cause Analysis (RCA)7 for any major chemical accidents or releases (referred to as"MCAR")at their facilities. 6 in Title CCR Division 2, Chapter 4.5. - Initial Study,Ordinance 98-48 August 5,1999 Page 9 Companies would frequently have to update the Contra Costa County Health Services Department on the status of Bwt- Cause Analyses while they are underway, since these analyses may tape months to complete. In addition, the Health Services Department could perform independent incident investigations or root-cause analyses for major chemical accidents or releases, should they choose to do 80. Safety Program and Safety Plans: Section 450-8.016 would require these companies to develop And implement a Safety Program:and to submit a Safety Plan describing this program. The Health Services Department would review these Safety Plans for completeness, issue "Notice of Deficiencies" where appropriate, and conduct a public hearing on'the Safety Plan once determined to be 'complete.-8 Companies would be required to submit an accident history of major chemical accidents or releases, including events from June 1, 1992 to the present.$ The Health Services Department would evaluate these Safety Programs, develop initial and final audit reports (called "Preliminary and Final.Determinations"), and conduct formal public meetings and public comment periods on the Safety Plans, the Safety Programs, and their findings. • Increased Agency and Public Review: The neve program would require the Health Services Department to conduct an annual performance review and evaluation of both Chapter 450-8 and the industrial facilities' compliance with the ordinance. To facilitate public access to information, it would also create an"ombudsperson" position to be funded through industry fees. In addition, it would create a public information bank by December 2400, to ensure that certain reports prepared by these companies{such as 72-hour reports or 30-day reports A Root-Cause Analysis seeks to identify the factors causing or contributing to an accident or release. !Chapter 450-8.018(A)of the County Ordinance Code. 9 Chapter 450-8.016(F,)of the County Ordinance Code. Initial Study,Ordinanoe 98-48 August 5, 1999 - Page 10 following an incident or Risk Management Plans) are readily accessible to the public. Should members of the public or representatives of a company be dissatisfied with findings-made-by the Health Services Department, they could appeal a"Final Determination" to the County Board of Supervisors.in C. Revisions to Chapter 84-63, Land Use Permits Ordinance 98-48 would make numerous changes to Chapter 84-63. Changes in Sections 84-68.410, 63.418, and 88.8 would be mostly technical and clarifying. These changes would not affect the overall applicability of the ordinance. However, two changes, summarized below,would alter the County's land use permitting program by changing its applicability: a. Section 84-63.602 would make Chapter 84-63 applicable in any non-agricultural zoning district, whereas under Ordinance 96- 20, this chapter applied in any zoning district. As a result, projects that would involve hazardous materials within an agricultural zoning district would'no longer be subject to Chapter 84-63. b. Section.84-63.1.0 would be amended to include three new categories of development projects that would be required to obtain land use permits, independent of the results of their hazard scoring. A development project that would store a Category A material, Extremely Hazardous.Substances, if the amount stored is twice the"threshold planning quantity"'I, or 2000 pounds, which ever is smaller, ■ A development project that would result in a new process unit that uses a Category A or B material; A development project with Category B materials that are equal to or greater than 40,000 tons. These three changes would broaden the requirement for a land use permit to certain types of development projects that Id Chapter 450-8.018(D)of the County Ordinance Code. II The quantity specified as the Threshold Planning Quantity on the Extremely Hazardous Materials List{Appendix A to 40 Code of]Federal Regulations Chapter I, Subchapter J,Part 355,as amended from time to time),whichever is less. Initial Study,Ordinance 98.48 August 6,1999 Page 11 otherwise might not trigger such a requirement through the hazard scoring method. D. Applicability to the City of Richmond: The risk management portion [Chapter 460-81 would be entirely new,with no predecessor in either the County or the City of Richmond. Thus the environmental analysis of this portion would apply to both jurisdictions, since the existing settings are similar. In this case, the Chevron Refinery, located within the City of Richmond, meets the two criteria identified above for triggering application of Chapter 450-8. Should the City of Richmond adopt legislation similar to the County's Chapter 450-8, then Chevron and General Chemical-Richmond would be subject to the same procedures as the other industrial sites in the County.12 The land use permitting portion of the Industrial Safety Ordinance would amend a previous County ordinance [Chapter 84-03] that currently requires land use permits for certain projects involving hazardous materials. The environmental analysis of the land use permitting portion of Ordinance 98-48 may not apply to the City of Richmond, since the existing settings are quite different between the two jurisdictions. The County's predecessor to Ordinance 98- 48 used a risk scoring mechanism similar to that contained in Ordinance 98-48; whereas Richmond has not previously adopted a similar mechanism to determine when a land use permit is required for hazardous material facilities. The City of Richmond currently requires conditional use permits for certain types of facilities handling hazardous materials. However, since Richmond's existing conditions may be quite different from the County's, at some point Richmond may have to prepare its.own analysis, independent of the County. lE According to records of the Health Services Department,only these two facilities within Richmond satisfy the criteria that determine applicability of Chapter 450-8. Initial Study,Ordinance 98-48 August 5, 1999 Page 12 Major Changes and Potential Impacts A. potential Impacts Due to Adoption of Chapter 450-8 The adaption of Chapter 450-8 would change the regulatory framework in a•manner that is likely to reduce potential risks associated with the operation of major industrial facilities. Referring to the five categories of program changes summarized in Section ILA above, staff anticipates the following potential changes: 1. Prevention &Emergency Response Programs The expansion of the Prevention and Emergency Response Program would strengthen risk reduction activities throughout the facility. Chapter 450-8 would increase the number of processes subject.to Process Hazard Analyses (PHA)..Process Hazard Analysis is a primary tool used in complexi industrial facilities to predict and remedy potential weaknesses lin their physical plants as well as in their management and safety systems. Chapter 450-8 would also provide the Health Services Department oversight of all prevention program elements, including Process Hazard Analyses, and would thus provide input from experts outside the company. These changes appear likely to generate either no changes in the implementation of prevention programs(when a company is implementing the programs as well as possible)or an improvement in the implementation of prevention programs (such as correction of more problems and weaknesses.) Thus,'the risk of an accident would either stay the same or decrease, generating either no impact or a potentially beneficial impact on the physical . environment. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 2. Human Factors Program The Human Factors Program would broaden the evaluation of potential causes of an accident, leading to a better understanding of those factors that cause"human error". The company would then be able to take action to minimize these factors, again reducing the possible severity or probability of an accident. Initial Study,Ordinance 98-48 August 5.1999 Page 13 Thus, the risk.of an accident would either stay the same or decrease, generating either no impact or a potentially positive impact on the physical environment. Staff det6imin&th'et there is no'suba ntial'evidence that this aspect of the project may cause a significant effect on the environment. S. Root-Cause Analysis The Root-Cause Analysis Program would increase opportunities to understand the factors causing and/or contributing to a major accident or release: -By requiring the root-cause analysis, both the private and public sector would gain knowledge about how to prevent future accidents. I Thus the likely outcome of this program would be either to leave risks unchanged or to reduce the probability of future accidents, thereby reducing the risk of a future.m,ajor,.release. This change would therefore generate either no impact or.a potentially beneficial impact on the physical.environment. Staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 4. Safety Plans and Programs Chapter 450-8 requirements for Safety Programs and Safety Plans would be similar to the CaIARP requirements for risk management programs and risk management plans. Chapter 450-8 would provide public and agency review of these Safety Programs and Safety Plans, which is likely to cause either no change or a positive change in safety efforts by these private companies. In addition, requiring presentation of both accident records and agency compliance reviews would also provide additional public scrutiny. This increase in public and agency and scrutiny of the safety efforts in an industrial facility could have either no effect or a positive effect by increasing a sense of accountability. This change would thus lead either to no change"in the environment or to a potentially positive impact on the physical environment through reduction in accident risk. Staff'determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. Initial Study,Ordinance 9848 August 5,1999 Page 14 5. Increased Regulatory and Public Review The increased regulatory review includes annual performance reviews, annual reviews of the Ordinance itself, an ombudsman, and increased public information. It also includes an opportunity to appeal the agency's"Final Determinations" concerning these reviews to the County Board of Supervisors, or in the case of Richmond, to the City Council. These changes are likely to broaden public and agency knowledge about safety factors and to make private companies more accountable for their on-site programs. Even though Chapter 450-8 provides that agency findings could be appealed to the Board of Supervisors, that opportunity already exists for an Administrative Finding made by the Health Services Department and cannot be attributed to Chapter 450-8. Chapter 450-8 would increase the number of units the Health Services Department is able to audit/inspect and mandate changes. However, the Health Services Department must provide a basis(e.g. regulation, standards, and guidelines) for each mandated change to bring the facility into compliance with Chapter 4508. Chapter 450-8 would allow the Health Services Department to require a company to conduct its evaluations appropriately, to submit important information to the Health Services Department, and to successfully implement remedies resulting from these various analyses within a reasonably short period of time (about one year). These actions are likely to lead either to no change in risk or to reduced risks, as additional weaknesses are.revealed and appropriate remedies are implemented. Thus the County concludes that this change would therefor lead either to no impact or to a potentially beneficial impact on the physical environment through a reduction in risk of an accident or a major release. In summary, staff determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 6. Summary In summary, the prevention program elements discussed above are directed at preventing releases of toxic and flammable substances, thereby reducing the risk to the physical environment. The emergency response program is,directed at mitigating releases of toxic and flammable substances, thereby minimizing the impact of an event on the physical environment. The remaining elements of the program (those that are not otherwise required by existing Initial Study,Ordinance 9848 August 5,1999 Page 15 regulations) are also directed at preventing and mitigating releases as well as enhancing communication between the facility operator and the public. Since cflmpariie's Are'Uely pei&fming4i'different levels of effectiveness in accident prevention and emergency response, the County and City staff cannot determine the total potential for improvement in all cases. however, the staff can determine, based on its previous experience with industrial facilities, that at least some companies could make changes that would reduce accident risks. This previous experience derives in part from the health Services Departmenes management of the County's former Risk Management Prevention Program, in which the County worked with companies to identify improvements in facility design and operation to reduce risk. Staff cannot conclusively identify potentially significant adverse physical impacts that might result from the adoption of Chapter .:.-450-8. Thus, stagconcludes that-adoption.of Chapter 450-8 would haveeither no potential impact on the physical environment or a potential beneficial impact on the physical environment. Staff determines that there is no substantial evidence that this aspect of the project,may cause a significant effect on the environment. s • Initis!Study,Ordinance 98-48 August 5,1999 Page 16 B. Potential Impacts From the Proposed Amendments to Chapter 84-63. As summarized above, 0)rdinance 98-48 would make two primary changes in the County's current land use permitting requirements. The first of these changes would make Chapter 84-63 applicable in all non-agricultural zoning districts, as opposed to all zoning districts. The second change would result in certain development projects being subject to the land use permit requirements, independent of their expected hazard scores. The potential impacts of these two changesare evaluated below. 1. Restricting Applicability to Non-agricultural Zoning Districts Making Chapter 84-63 applicable in all non-agricultural zoning districts (as opposed to all zoning districts)would potentially remove certain agricultural activities involving hazardous materials from Chapter 84-63 land use permitting requirements. _In order to evaluate the magnitude of this change,one must first understand what types of facilities and uses are currently allowed ' in agricultural zoning,districts without a land use permit. The County has seven types of agricultural zoning districts, as .h listed below. In each district,certain uses are allowed without a land use permit and certain uses are allowed only with a land use permit. Zoning Zoning District Uses -- Uses-- Type permitted requiring unci use permit A-1 ' ht . `culture 84.36.402 84-86.404 A-2 Ge eral AgAculture 84-38.402 8438.404 A-3 Heavy 'culture 84.40.402 84-40.404 A-4 'cultural Preserve 84-42.402 84-42.404 A-20 Exclusive 'cultural 84.80.402 84-80.4014 A•4O Exclusive 'cultural 1 84-82.402 84-82.404 A-80 Exclusive ' ultural 84-84.402 84.84.404 The following list summarizes the types of facilities and uses that are currently allowed in agricultural districts without a land use permit: A-1 Light Agricultural Districts allow small farming, nurseries, Poultry raising, the keeping of livestock, and small foster home and family day rare.facilities (i.e., not more than six.minors). �+ A-2 General Agricultural Districts allow all types of agriculture plus such agricultural uses as warehouses, dehydration plants, z initial Study.Ordinance 98-48 August 6, 1999 y Page 17 Packing plants, cold storage plants, and small foster home or -day care facilities. A-3 Heavy Agricultural Districts allow the A-2 permitted uses, M except for single-family homes. However, residences are :allowed for diose`owning or Teasing land on which an agricultural use is located. A-4 Agricultural Preserve Districts allow types of agricultural, Production'similar to that allowed in an A-2 district, but related uses(such as warehouses, storage facilities, and Packing plants) require a land use permit. A-20 Districts allow all types of agriculture plus other agricultural uses, such as sheds,warehouses, dehydration plants,packing plants;and product storage facilities. Both.A-40 and A-80 districts allow the same uses as allowed in an A-20 zoning district. In general all of these districts allow agriculture, and the A-2,A-3, A-20, A-40, and A-80 districts also allow agricultural uses(such as warehouses,.packing plants, cold-.-storage-plants). Only the A-2 and A-3 Districts allow small foster homesor'childcare facilities. .Noneof these districts allow uses considered"sensitive receptors"M-i.e., churches, hospitals, community buildings, medical facilities,.etc.—'as a matter of right: 'Four of the seven districts.(A-1,A-2;A-3, and A-20) allow such sensitive uses with a land use permit. The remaining three districts exclude such uses entirely. In addition, none of these districts allows hazardous material operations—with or without a land use permit--that are unrelated to agriculture. 4n .yam: Given the existing zoning restrictions that apply to the seven agricultural zoning districts,.the potential is quite small for conflicting land uses between hazardous material facilities and sensitive land uses(such as hospitals, large day-care facilities, and community buildings). In these districts,"sensitive"land uses(as defined by Ordinance.98-48)either are not allowed or require a land use permit. Prior to granting a land use permit for these asensitive" uses, the County would be required to evaluate the proposed facility's compatibility with surrounding land uses and to determine that public health and safety would not be jeopardized. The types of"agricultural uses" allowed in five of the districts typically would not include facilities.associated with a hazard score of 80 or more. Hazardous material storage would be allowed in a general agriculture zoning district, but only as necessary to Supportan individual land owners' agricultural operations. 13 As defined by the Industrial Safety Ordiaance, Section 84-63.434. Initial Study,Ordinance 98.48 August 6,1999 Page 18 The agricultural sector is not expanding in Contra Costa County. No new facilities involving significant quantities of hazardous materials have been built in recent years; given the shrinking agricultural sector, new major facilities are not anticipated. The types of agricultural facilities(i.e., food packing plants, dehydration plants)that have been built typically use small amounts of hazardous materials that would not have triggered a requirement for a land use permit under Ordinance 98-48. In'addition, agricultural facilities using hazardous materials are subject to the same requirements as other types of facilities to prepare and file Business Plans with the County,identifying the t types and quantities of hazardous materials on-site.14 The Agricultural Commission.-regulates and monitors the use of these materials. Thus, excluding development projects in agricultural districts from Chapter 84-83 would not decrease the numbers of projects that would otherwise be required.to obtain land use permits. The types of,facilities permitted by right in these districts typically ` would not.use hazardous materials in sufficient quantities and types to require a land use permit under Chapter 84-63. This conclusion is consistent with the recommendation made by the National Institute for Chemical Studies to amend Chapter 96-20 so t that it applied only in non-agricultural•zoning districts.15 "Interested Parties" Comments and B&MMues: There were no comments on this portion of the Initial Study. Conclusion: In summary, staff'has evaluated information summarized above and determines that there is no substantial evidence that this aspect of the project may cause a significant effect on the environment. 14 Telephone Interview with Mr.Edward P.Meyer, CCC Agricultural Commission,July 28, 1999. 15 National Institute for Chemical Studies. "Report to the Contra Crista County Board of Supervisors,"November 19, 1998,page 13. Initial Study,Ordinance ge-48 August 5,1999 Page 19 2. Expanding Land Use Permitting Requirements for Additional Types of Projects The second change-would require thine types of development projects to acquire land use permits, independent of their hazard score. As a result, the number of projects subject to the County's existing land use permitting procedures may increase. The development projects in this category.include (1)those storing industrial quantities (rather than planning quantities)of extremely hazardous substances(i e., Category A)19; (2) those storing extremely large amounts of flammable materials and legs dangerous corrosives and oxidizers(L e., Category 13)17, and(3) those adding a new process unit that uses either Category A or B materials. Note that these inclusions apply only to projects involving hazardous materials above the exemption thresholds specified in Section 84-63.604(c). The staff has insufficient.information to determine what number or portion of these three types of facilities would be required to obtain a land use permit due to this change in applicability (Section 84-68.10). . Although staff can deduce.that this change is likely to increase the number of develop meat projects to obtain a land use permit, staff cannot draw this conclusion with certainty. Thus this change may increase public and agency scrutiny of certain proposed development projects(through the land use permitting process)but it clearly would not reduce the level of scrutiny. lsi • The land use permitting process increases opportunities for both public and agency scrutiny of proposed projects, and often it generates'Conditions of Approval that woidaieduoe potential adverse impacts. To approve a land use permit requires a positive finding"that the proposed conditional land use shall not be detrimental to the health, safety and general welfare of the county."18 It also requires a positive finding"That it shall not create a nuisance and/or enforcement problem within the neighborhood or community."19 The process of evaluating a proposed project and making such a finding is highly unlikely to - . dead to negative impacts on the physical environment. 18 Category A materials include"forbidden materials", explosives,blasting agents, reactive materials,radioactive materials,oxidizers,and poisons. 17 Category B materials include flammable liquids, solids,and gases;oxidizers (DOT Group II);and corrosives(DOT Group I or II). 18 County Code Section 26-2.2008(1). 1s County Code Section 26-2.2008(5). tnWat Study,Ordinanoe 98-48 August 5, 19W Wage 20 However, this process could create beneficial environmental impacts by leading to reductions in risks of proposed projects. In the process of evaluating proposed projects for land use permits, previous experience by County staff indicates that project proponents often revise their projects so that staff can make the necessary findings of no detrimental impact to health, safety and general welfare. These projects also become subject to CEQA review. The CEQA process often generates additional information on how to reduce risks to public health and safety. Project proponents often revise their proposed projects in order to avoid or mitigate potential significant impacts, as defined by CEQA. Such changes are likely to lead to beneficial impacts on the environment, Staff has found no evidence that this process of increased public and agency review in and of itself would create adverse impacts on the physical environment. Thus staff concludes that these proposed changes to expand applicability of Chapter 84-68 would have either no impact or a beneficial impact on the physical environment., "Interested Parties" C.omnxents and R.esPonses' The July 7, 1999 letter from Communities for a Better Environ.ment,2e (CBE) states that the Industrial Safety Ordinance would(1)raise the Hazard Score Threshold for requiring land use permits from 60 to 80 points and(2) add land use permitting requirements for certain limited uses. The letter then asserts that these changes would(a)lower the safety threshold for numerous facilities, (b) thereby greatly increasing the probability of"plant blow ups," (c)remove public scrutiny of these facilities prior to permitting, and(d) thus directly resulting in significant environmental impacts. The evidence.provided quotes a study by the rational Institute for Chemical-Studies stating that the hazard score is not a true statement of risk. In response, staff disagrees with CBE that the Industrial Safety Ordinance raises the score from 60 to 80. As-discussed above under"Project Description," staff concludes that adopting Ordinance 98-48 would continue the hazard score threshold of 80 which was set by Ordinance 96-20, its legally valid predecessor. Second, CBE has,presented no"substantial evidence" to support its view. CEQA considers"substantial evidence" to be facts and opinions supported by facts. It excludes"speculation and conjecture" as well as"unsubstantiated opinions,concerns, and 'io Pages 1 and 2, Section A,of the July 7, 1599 letter from Denny Larson,Communities for a Better Environment,to Debbie Sanderson, CCC Community Development Department. Initial Study,Ordinance 98-48 August 5, 1999 Page 21 suspicions" from consideration as"substantial evidence."21 Thus, the CBE argument does not qualify as"substantial evidence." _. . .,. . - •.Third, CBE's presumption thatfailure to require a land use permit would directly lead to a great increase in the probability for"plant blow-up or accidents"entirely overlooks the steadily expanding safety requirements for industrial facilities—entirely independent of the County'e Land Use Permitting Process. Fourth, staff concurs with CBE that the analysis prepared by the National Institute for Chemical Studies does conclude that the hazard scoring formula could be improved—it underestimates some risks while overestimating others.22 However, staff disagrees with CBE on the implications of this conclusion. The study authors slid not in their conclusions recommend that the score be lowered from 80 to 60 or that the scoring formula be revised as part of the adoption of Ordinance 9$-4& Instead, they concluded that"the Hazardous Materials Commission,had done a good job in setting a reasonable threshold(of a hazard'score'of 80] that would meet public safety needs..";3 The report did not recommend lowering the hazard sere. Conclusion In summary, staff has considered comments by the interested parties, as well as other information discussed in the preceding paragraphs, and has determined that there is no substantial evidence that this.aspect of the project may cause a significant effect on the environment. 41 See Michael Remey,et.al,."Guide to the California Environmental Quality Act(CEQA), 1996 Edition,"pages 139-146. to Ibid.,Appendix D. �,page 5. initial Study,Ordinance 98-48 August 5, 1989 Page 22 C. Options Presented In the Stipulated Judgment As indicated above, Section 7 of the Stipulated Judgment obligates the County to evaluate'the potential environmental impacts of four options or alternatives to the Industrial Safety Ordinance. These options are as follows: 7. Through the environmental review process, the County shall analyze, at a minimum the following mitigation measures and/or alternatives to the ISO [Industrial Safety Ordinance). (a) .Amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; (b) Establishing a technical assistance grant program with funding of$100,000-per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plana submitted by industrial facilities; (c) Revising the thresholds contained in Section 84-63.1007 of the ISO for determining when new development projects are subject to environmental review to 60 and 70 hazard points. The County interprets item 7(c)to include two cases--reducing the hazard score threshold from 80 to 70 and from 80 to 60. Thus the County will evaluate these items as four potential changes to the Industrial Safety Ordinance. Option 1: Allow County to Mandate Improvements: Option 1 would allow the County(in this case the Health Services Department)to require a facility to implement some change— either technical or managerial—in its facility operations in order to promote public health and/or safety. For analytic purposes, the County assumes that `technical improvements" comprise improvements to the physical system and"managerial improvements"comprise improvements to programs and procedures. AnplyeW Under Chapter 480-8(an expansion of the CaIARP program)the Health Services Department could require only managerial changes that are necessary to ensure compliance with Chapter 450-8. If a facility fails to comply with the ordinance, Health Initial Study,Ordinance 98-48 August 5,1989 Page 23 Services Department could issue a"Final Determination" identifying modifications in the Safety Plan or Safety Program necessary to bring the facility into compliance with Chapter 450. 8.23 The Health Services Department could enforce three types of compliance, as outlined in 'Chapter 450-8; (1) the Safety Plan (which summarizes the Safety Program) include all of the elements required by the Ordinance (such as Process Hazard Analyses,Management of Change procedures, training, etc.); (2) the facility's Safety Program is consistent with the Safety Plan submitted to the Health Services Department and the public. [This consistency is determined through an on-site audit of the Safety Program); and. -(3) the facility'smanagement practice is consistent with its written Safety Program(also determined through an on-site audit.) rChapter 450-8 would require a facility operator to develop programs that help personnel prevent and mitigate potential hazards, as opposed to requiring installation of specific physical systems. The Safety Programs developed through this ordinance could vary substantially frons facility to facility, and even from unit to unit within the same facility. For example, Section 450- 8.016(A)(11)of County Ordinance 98-48 would require a facility operator"...when selecting a contractor, [to] obtain and evaluate information regarding the contract owner or operator's safety performance or programs." Facilities may adopt different procedures for meeting this requirement. Option 1 would allow (although not mandate)Health Services Department to also require certain physical changes that it concludes would improve public health and safety. Such authority could have beneficial physical environmental impacts, depending on how this authority is applied and whether additional safety options actually exist. Option 1 specifies that the change would have to promote public health and'safety. Health Services 7epartment has a long history of worig effectively with industrial facility operators to reduce risk and increase public safety. Assuming the Health Services Department continues to make decisions consistent with its previous practices,, then the environmental impacts are likely to be beneficial.. Should a company disagree with a change mandated by Health Services 23 Chapter 450-8, Section 8.01.8. Initial Study,Ordinance 98-48 August 5,1999 'age'24 Department, it could appeal the decision to the Board of Supervisors; as with any administrative decision. In order for a negative impact to result from Option 1, Health Services Department would have to mandate a change that in some way compromised the industrial process, probably over the objections of the facility. Such a decision could be appealed to the Board of Supervisors. Staff can identify no reason why the opportunity to mandate physical improvements in an industrial facility would be any more likely to lead to adverse impacts than the opportunities already provided in Chapter 450-8. Thus staff concludes that Option 1 is likely to create beneficial impacts on the environment. "Yntereetkl Parties" Gimments and Responses: Three letters commented on staffs evaluation of this option. Ms. Leslie Stewart24 commented that staff overlooked the possibility that a party might*appeal HSD's lack of action, the Board of Supervisorswould have to choose among experts, and the Board of Supervisors might err. While staff concurs that this outcome is theoretically possible,Nle. Stewart presents no evidence to support this argument. 'Under CEQA arguments that are not inference from evidence do not qualify as"substantial evidence." Thus staff disagrees with the cornmentor that an EIR should be prepared. A second letter, frorri Tosco Refining Company, asserts that a: significant impacts are likely from the adoption of Option 7a. The letter presents as supporting evidence the story of U.S. EPA's 1994 adoption of ethylene oxide emission reduction regulations [40 CPR, Part 63 Subpart O]. Over a three-year period, the EPA determined that the emission control equipment required by these regulations caused increased likelihood of explosions and the regulations were repealed. Tosco asserts that this story provides substantial evidence that allowing the Health Services. Department to require safety improvements without the benefit of full public review of the requirement could lead to potential significant environmental impacts. Staff has evaluated this evidence and concludes that it does not apply in the consideration of adopting Option 7a. First, these EPA regulations were.subject to a full public review process—staff analysis, public review, public comment, noticing, etc. After this full review of the requirement, EPA adopted the regulations. Three years later EPA determined that it had erred and withdrew the requirement. This evidence supports an argument that agencies and public decision-makers can err—even with full tl Letter of June 25, 1999 from Leslie Stewart to Debbie Sanderson, CCG Community Development Department. Initial Study,ordinance 98-48 August 5,199.9 Page 25 public, industry, and technical review of the proposed changes. It does not provide evidence that they are more likely to err without full public review prior to adoption of a requirement. One could argye.that agencies would be even more cautious without full public review and thus might%e-less"likely to err. Staff does not concur with Tosco that this information comprises"substantial evidence" supporting an argument that an EIR should.be prepared. A third letter, from Communities for a Better Environment(CBE), asserts that the failure to give the County discretionary authority may lead to significant environmental effects and thus triggers the requirement to prepare An Environ..mdtital Impact Report. CBE summarizes arguments both supporting and rejecting this position and then concludes that the ambiguity on this issue qualifies as "substantial evidence" and the County roust therefore prepare an EIR to resolve this ambiguity. ACBE presents no evidence to support either argument, and CEQA does not treat arguments and disagreements, ipso facto, as evidence. Disagreements among experts may trigger the requirement for an EIR,, but in this case CBE has not presented any evidence that there is a disagreement among experts in the:field that addresses the question at hand.25 Conclusion: In summary, staff has considered these comments by the "interested parties", as well.as other information referenced above, and finds no substantial evidence indicating that the impacts of Option I. may cause a signifiicant effect on the environment. Option 2: Technical Assistance grants This option would establish a:technical assistance grant program with funding of$100,000 per year made available to community organizations to hire technical experts to assist with analysis of the Safety Plans submitted by industrial facility operators. As background, recall that the Safety Plans are documents that summarize companies' on-site safety program. An audit performed by Health Services Department would determine whether a Safety Plan truly reflected a company's Safety Program and whether the'Safety'Program was actually being implemented on-site. Providing communities with additional technic4d expertise to review Safety Plans could lead to much more intense public questioning of both the company that prepared a Safety Plan and 26 See X Remy, et. al., page 144-145. 1 502 Initial Study,Ordinance 98-48 August 6,1999 Page 26 the staff who conducted an audit. This public scrutiny and discussion could create an incentive for companies to reduce risks by improving their Safety Programs, altering the chemicals handled, or modifying technology. There is at least anecdotal evidence that implementation of some Community Right to Know Programs and enforcement of Safety Programs has motivated some companies to reduce on-size hazards and improve work place safety. Staff analysis has determined no scenarios likely to lead to detrimental environmental impacts due to increased public access to technical experts to scrutinize a company's Safety Plan. On the other hand, the impacts could be positive due to increased public review of and input to companies' Safety Programs and Safety Plans. "In Parties" Comments and Responses: There were no new comments received addressing this option, other than Tosco Refining Company reiterating its earlier K comments. Conclusion: As with Option 1, staff.has considered comments by the'interested parties," as well as other information summarized above, and finds no substantial evidence indicating that the impacts of Option 2 may cause a significant effect on the environment. Option 3 and 4: Lower the Hazard Score Threshold The Industrial Safety Ordinance would not amend the hazard score threshold that triggers requirement of a land use permit. Projects with a.score of 80 or more would stall be required to obtain a land use permit in order to build and/or operate the proposed development project. Those with a score between 70 and 78 would } still be subject to public review and comment.on their risk scoring and on the Community Development Department's Determination of.Coverage. The score of eighty was initially recommended by the Hazardous Materials Commission, comprised of representatives of a wide variety of parties interested in developing a risk-based system for requiring land use permits. This group evaluated eighty-seven hypothetical development projects grouped by hazard scores, and determined that those in the Hazard Score 80 category(and higher)were,the types.of facilities that should be required to obtain a land use permit prior to construction or operation. The Industrial Safety Ordinance would not alter this threshold hazard score or the formula for deriving a project's.hazard score. Initial Study,Ordinance 98-48 August 5, 1999 Page 27 Analysis: In order to evaluate the potential impacts of lowering the threshold score either to 70 or to CO, staff has reviewed _information compiled previously by the Hazardous Materials Coi ixniseio-n v hen e'stibli hl ig the hazard`ecore threshold of 80. These scenarios(Attachment A)provide examples of hypothetical development projects that would be in each of these groups—those with scores in the seventies and those with scores in the sixties. The purpose of this analysis in the Initial Study is t6 determine the potential environmental impacts of requiring land use permits of those projects with scores in the seventies and also of those with scores in the sixties. Attachment A presents the listing of the types of facilities that would have scores in each of these categories and explains the process original used by the Hazardous Materials Commission in choosing the threshold score of eighty. This Commission determined that numerous facilities with scores of eighty or more could be made safer, reducing their project-hazard below eighty, while still remaining viable.However, the Hazardous Materials Commission determined that these facilities could not readily reduce their hazard'scores below sixty and remain economically "vi:able. The Commission alllo reasoned that requiring land use permits for projects with scores of 80 or above would create an incentive for applicants to make their projects safer—ie., make a project safer, reduce the hazard score to below 80, and thereby avoid the lengthy land use permitting process. In keeping with the conclusions drawn by the Hazardous Materials Commission,one possible outcome of lowering the threshold hazard score would be a reduced,number of projects with scores 'between under 80 and an increased number of projects with scores over 80. Applicants with projects that could be made safer would, in theory, not do so, sine it would no longer help them avoid the .land use permitting procedures. Without this incentive, applicants would simply propose projects with scores of 80 or more, even though they could have proposed safer projects that were economically viable. Staff has considered the analysis performed by the Hazardous "Materials Commission and does not'frid bnbstantial evidence that the result i Le.,projects that are eventually permitted and built— would be any more dangerous. In staff's experience, "proposed projects" do not equate to"built projects," largely because there are other incentives for applicants to lower the risks of their projects. . For example, in order to find that either Option 3 or 4 may create a negative environmental impact, staff would have to conclude that the County could not deny permits or cause a proponent to alter Aego r r` inWal Study,Ordinance 98-48 August 5, 1995 Page 28 the proposed project in such a way that would reduce risks. Such conclusions contradict staff experiences with land use permitting, which frequently result in project proponents amending their proposed to reduce risk, for a variety of reasons •- to satisfy the County's' performance criteria for issuance of land use permits; to satisfy concerned neighbors; to avoid a"significant impact" finding under CE"-or to avoid other types of regulatory requirements. Thus staff concludes that there is no substantial evidence that adopting Option 3 or 4 may lead to potentially significant adverse environmental impacts. On the other hand, adopting either Option 3 or 4 could create an even greater incentive for proponents to reduce risks even further, to levels below a hazard score of either 70 or 60. This hypothesis, if true, could result in beneficial environmental impacts. The experience with hazardous waste generation in the United States provides extensive evidence that industry can, over time, develop new, less hazardous ways of operating in order to avoid costly regulations or permitting procedures. i.: "Interested Par—ies" Qgminente and ILzg rases. 1!.eslie Stewart commented that lowering the threshold could reduce the incentive for a company to reduce risk, leading to proposed projects with higher than necessary risks. Ms. Stewart _. further infers that facilities would tend to become out-of-date. Staff concurs that this outcome is theoretically possible, but notes that Ms.Stewart has present no evidence supporting this position. As mentioned previously,inference or argument must be based on evidence to be considered as"substantial evidence" under CEQA. Tosca Refining Company's letter encourages the Board of ,Supervisors to allow the threshold to remain at its current level. However,Tosco provides no evidence supporting an argument that significant impacts may follow if the Board of.Supervisor's lowers the threshold. Ccanglusions: As.discussed above, staff has not identified substantial evidence supporting a conclusion that lowering the threshold either from eighty to seventy or from eighty to sixty may cause adverse environmental impacts. Staff finds some evidence that potential beneficial impacts arelikely to occur, but staff finds no substantial evidence indicating that Options 3 or 4 may cause a significant adverse effect on the environment. Comment on the Initial Study Checklist and Overall Conclusions: Section D of the CBE letter comments on the conclusion reflected in Section VII of the Initial.Study Checklist attached to this Initial study,Ordinance 98-48 August 5, 1999 Page 29 analysis. CBE asserts that since facilities transporting, using, or disposing of hazardous materials may be within one quarter mile of a school [VII(c)]' and since a toxic release,may affect a school, then there is substantial evidence of potential significant impacts. CBE presents no evidence to support this argument or inference. To be considered"substantial evidence", CEQA requires that the inference be Teased on evidence, not logic. Indeed, schools themselves'may transport and use hazardous materials, which does not lead to the conclusion that significant environmental impacts are present. Thus staff does not concur with CBE that they have submitted substantial evidence supporting a fair argument that significant enivironmental impacts may occur. Section B of the CBE batter asserts that there is a disagreement among technical experts about the adoption of the"Section 7 options", and that this disagreement automatically triggers a requirement that the County prepare an Environmental Impact Report. Staff has evaluated this assertion and disagrees with its application in this case: First, Cj3E has not presented evidence of a disagreement among technical experts. Second, staff review of the.full record sloes not reveal a disagreement among technical experts based on evidence. The parties to this debate have presented various arguments, opinions, and inferences from opinions concerning the advisability of adopting one or more of these options. However, these are not disagreements based on evidence concerning the question at hand--that is, would adoption of an option lead to potential significant environmental impacts? In addition, staff does not consider all of these parties to be "technical experts"in the field of determinuxig potential environmental impacts. Thus staff disagrees with CBE that in this case a review of the record supports-thre conclusion that CEQA requires preparation of an Environmental Impact Report. 2 initial Study.Ordinance 98-48 August S.1999 Page 30 IV. Comments from Interested Partes A. Comment Period #1 (April 19 through May 20, 1990. &guest for CQmmen Consistent with Items 7 and 8 of the stipulated Judgment, on April 19, 1999, the County Community Development Department distributed a letter to'"Interested Parties"inviting them. 1. to submit written comments by May 20, 1959 concerning potential adverse impacts of the adoption of Chapter 98-48, 2. to attend a meeting on April 28, 1999 to discuss the pending CEQA analysis, and 3. to suggest additions to the County's"Interested Parties" distribution list. In addition, on April 21, 1999, the City of Richmond distributed a similar letter to"Interested Parties" within Richmond. Over two hundred letters were distributed by the two agencies. The County and City distributed the lettere to those in the County and City who had previously shown interest in this ordinance, plus the County's Municipal.Advisory Councils,the City's Neighborhood Councils, and the Citizen Advisory Panels for industrial facilities. The County and City goal was to provide an opportunity for input to anyone who was interested. The County and City invited written public comments that would provide evidence of potential environmental impacts either(1)due to the adoption of the Industrial Safety Ordinance or (2) due to the possible adoption of any of the four options identified in Item 7 of the Stipulated Judgment. Comments were requested by Thursday, May 20,, 1999. At the meeting on April 28, 1999, the County described the basis for the CEQA analysis, the baseline conditions' (i.e., Chapter 84-63 as amended by Ordinance 96.20), and the type of public comments that would prove useful. Comment Period-#1—Letters received: The Department received comment letters from the following individuals;these letters are included in Attachment B: 1. Mr. Stephen Linsley, member of the hazardous Materials Commission 2.' Mr. Chuck Flagg, Refinery Manager, Martinez Refining Company 3. Mr. Brent Babowv, Vice President, California Contractors Alliance 1613 Initial Study,Ordinance 98-48 August 5,1999 Page 31 4. Ms. Marjorie Hatter, Manager, Health&Safety, Tosco Refining Company In summary, the letters make minimal comments on the potential impacts from the adoption'of Chapter 98-48. Commenters either make no comments or opine that the impacts are probably beneficial or at least not negative. No evidence is presented to support either'view. These letters were considered by staff in preparation of the Initial Study and Preliminary Negative Declaration, released June 7, 1999. The letters'primarily focus on the options described in Item 7 of the Stipulated Judgment. As concerns Option 7a(County authority to mandate facility changes to improve public health and safety), commentors anticipate both negative and positive impacts, although no one submitted substantial evidence to support either type of impact. One commentor suggested that the Tosco accident and the Chevron fire were evidence indicating that adopting this option would have beneficial impacts. However, staff has found no clear nexus between these events and the lack of such County authority to justify the conclusion. As concerns Option 7b(grants to community groups) and 7c/d (reduction in hazard score threshold from 80 to either 70 or 60), again comments ranged from negative to beneficial impacts but no commentor provided substantial evidence to support a conclusion of potential significant impacts. In conclusion, staff found no evidence of physical environmental impacts presented in these comment letters. Several commentors describe the same analysis presented.in this Initial Study, which staff views as inconclusive evidence of physical environmental impact. Much of the content of these letters presents concerns that ;ire,more appropriately brought before the County or City decision- making body when considering the possible adoption of these four options. B. Comment Period #2 (June 7 through July 7, t 999) On June 7—9, 1999, the Department and the City of Richmond notified interested parties of their Preliminary Determination to prepare a Negative Declaration for this project and invited written comments for the staffs consideration in making its final determination(due August 6, 1999). The staff made the Initial Study and Preliminary Negative Declaration available for public review, held an open-discussion meeting on June 30, 1999, and requested written comments by July 7, 1999. Staff received the Y Initial Study,Ordinance 98-48 August 5,1999 Page 32 following comment letters, included in Appendix B of this document; 1. Ms. Leslie Stewart,dated June 25, 1999. 2. Mr.Denny Larson, Communities for a Better Environment, dated July 7, 1999. 3. Ms. Marjorie flatter,Tosco Defining Company, dated July 7, 1999. Staff considered these comments in preparing this revision of the July 7 Initial Study, as summarized above. Initial Study,Ordinance 98-4.8 August 5, 1999 Page 33 V. Summary Conclusions In conclusion County and City staff find no substantial evidence of potential significant impacts due to 1. The adoption of Chapter 480-8, as presented in Ordinance 98- 48, or 2. The amendments to Chapter 84-63, as presented in Ordinance 98-48, or 3. The adoption of any of the four options presented in the Stipulated Judgement, Items ?(a), (b), or(c). Staff has identify potentially beneficial impacts from 1. The adoption of Chapter 450-8, as presented in Ordinance 98- 48, 2. The amendments to Chapter 84-63, as presented in Ordinance 98-48, and 3. The adoption of any of the four options presented in the Stipulated Judgement, Items 7(a), (b), or(c). While staff analysis concludes that the environmental impacts from these items appear likely to be beneficial, staff has not identified substantial evidence that would support this conclusion. As required by the Stipulated Judgment, the County has completed an initial study on the items as instructed and finds that a negative declaration is required by CEQA for this project. CEQA Guidelines Section 15063(b)(2)obligates the County or City to"prepare a negative declaration if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment." CEQA(Section 21068) defines a"significant effect on the environment" to be"a substantial, or potentially substantial, adverse change in the environment." Thus to determine that any aspect of this project.would create a significant impact, staff would have to determine that substantial evidence,exists that a specific aspect of this project may cause a substantial or potentially substantial adverse change in the environment. Staff has identified no such substantial evidence and thus recommends that a Negative Declaration be prepared for this project. ry Initial Study,Ordinance 98-48 August 5,1999 Hage 34 Vl. Presentation of CEQA Checklist (follows) F . Environmental Checklist Form 1. Project Title: Initial Study on the Contra Costa Counta Industrial Safety Ordinance (Ordinance 98-48) 2. Lead Agency Nene and Address: Community Development Department Contra Costa County 651 bine Street, 4th Floor, North Wing Martinez, CA 94653-0096 3. Contact Person and Phone Number Debbie Sanderson, (925) 335-12018 4. Project L,acation: Contra.Costa County - 5. Project Sponsor's Name and Address: n.a. 6. General Plan Designation: n a. 7. Zoning: any non-agricultural zoning district 8. Description of Project: (Describe the whole action involved,including but not limited to later phases of the project, and any secondary, support,or off-site features necessary for its implementation. Attach additional sheets if necessary.): This project is an Initial Study evaluating the potential environmental impacts of(1) changes that would occur by replacing.Contra Costa County Ordinance 96-20 with Contra Costa County Ordinance 98-48 and(2)the four options identified in Items 7{a), (b), and(c)of the Stipulated Judgment(Civil No. CW00094). 9. Surrounding Land Uses and Setting: Briefly describe the project's surroundings. Not applicable. to. Other public agencies whose approval is required(e.g.,permits, financing approval,or participation agreement). bone ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project,involving at least one impact that is a"Potentially Significant Impact" as indicated by the checklist on the following pages. Land Use and Planning Transportation/ — Public Services Population&Housing Circulation _.. Utilities&Service Geological Problems � Biological Resources Systems Water Energy&Mineral Aesthetics Air Quality Resources _,,,. Cultural Resources Mandatory Findings of — Hazards Recreation Significance _,,, Noise J 2 DETERMINATION On die basis of this initial evaluation: iX I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment,there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A MITIGATED NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment,and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed project MAY have a significant effect(s).on the envi ronnient,.but at least one effect(1)has been adequately analyzed in an earlier document puisuan.t to.applicable legal standards,and(2)has been addressed by mitigation measures based-on the earlier analysis as described on attached sheets,if the effect is a"potentially significant impact"or".potentially significant unless mitigated." An ENVIRONMENTAL IMPACT REPORT is required,but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment,there WILL NOT be a significant effect in this case because all potentially significant effects(a)have been analyzed adequately in an earlier EIR pursuant to applicable standards and(b)have been avoided or multigated pursuant to that earlier EIR,including revisions or mitigation measures that are imposed upon the proposed project. Signature r ate. Printed Name EVALUATION OF ENVIRONMENTAL IMPACTS: The attached"Initial Study Evaluation of the Industrial Safety Ordinance" provides the analysis supporting the conclusions reflected in this Initial Study Checklist. Staff . concludes that the there are no potential significant impacts associated with the adoption of Ordinance 98-48 o)r with the adoption of any of the four options described in Item 7 of the above-referenced Stipulated Judgement. C. Be located on a geologic unit or soil that is unstable,or that would become unstable as a result of the project,and pot*tially result in on-or off-site I nAliide,lateral spreading,subsidence, liquefaction or collapse?() - D. Be located on expansive sail,as defined.in Table 19-1-B of the Uniform Buitding Code(19514), crating substantial risks to life or property?{} E. Have soils incapable of adequately supporting the use of septic tanks or alternative waste disposal systems where sewers are not available for the disposal of waste water?(} 'T, SUMMARY: VIL Ne ''HAZARDS AND HAZARDOUS MATERIALS- Would the project: A. Create a significant hazard to the public or the environment through the routine transport,use,or disposal of hazardous materials?() B. Create a significant hazard to the public or the eavirournent through reasonably foreseeable upset and accident conditions involving the release of hazardous neaterials into the errvirminent? C. Emit hazardous ernissions or handle hazardous or acutely hazardous materials,substances,or waste within one-quarter mile of an existing or ptoposod school? D. Be located on a site which is included on a list of hazardous materials sites cotnpiled pursuant to Crovernment Code Section 65862.5 and,as a result, would it create a significant hazard to the public or the cnvkorunent?{) 8 . E. For a project located within an airport land use plan or,where such`a plan has not been adopted,within two miles of a public airport or public use airport,would the project result in a safety hazard for people residing or working in the project area.() F. For a project within the vicinity of a private airstrip,would the project result in a safety hazard for people residing or working in the project area? () G. Impair implementation of or physically interfere with an adopted a mergaxy response plan or emergency evacuation plan?() a Expose people or stns to a significant risk of toss,injury or death involving wildiand fres, including where wildlands arc adjacent to urbanized areas or where residences are intermixed with wddlands?() SUMMARY: VIII. HYDROLOGY AND WATER QUALITY- Would the project: A. Violate any water quality standards or waste discharge re:gWrements?() ' B. Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level(e.g.,the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)?{} C. Substantially alter the existing drainage pattern of the site or area,including through the alteration of the course of a stream or river,in a manner which would result in substantial erosion or siltation on-or off 3 SOURCES In the process of preparing the Checklist and conducting the evaluation,the following references (which are available for review at the Contra Costa County Community Development Department,651 Pine Street 5th Floor-North Wing,Martinez)were consulted: 1. Contra Costa County Ordinance 96-20. 2. Contra Costs County Ordinance 98-48. 3. Chapter 84-63 of the County Ordinance Code. Len than significant Potentially with Less Than Significant Mitigation significant No Impact hworporatio.n impact Impact 1. AESTHETICS-Would the project: A Have a substantial adverse effect on a scenic vista?(Source# ) E. substantially damage scenic resources,including,but not limited to,trees,rock-outcroppings, and historic buildings within a ' state scenic highway? C. Substantially degrade the existing visual character or quality of the site and its surroundings? D. Create a new source of substantial light or glare which would adversely of ct day or "r nighttime views in the area?(} SUMMARY: II. AGRICULTURAL RESOURCES:In determining whdher impacts to agricultural resources am-significant environmental effects,lead agencies may refer to the California Agricultaural Land Evaluation and Site Assessment Model(1997)prepared by the California Dept.Of Coacervation as an optional model to use in assessing impacts on agricultural and fi►mtland. Would the project: A. Convert Prime Farmland,Unique Farmland,or Farmland or Statewide Importance(Farmland),as shown on the maps preparod pursuant to the Farrmland Mapping and Monitoring 4 Program of the California Resources Again`,to non-agneultural use?() B. Conflict with adsting zoning for agricultural useor a Williamson Act contract?O C. Involve other changes in the existing environtnent which,due to their location or nurture,could result in conversion of Farmland, to non-agricultural use?{) SUMMARY: IIC AIR QUALITY-Where available,the sipificance criteria established by the applicable air quality numagernat or air pollution control district may be relief upon to make the following determinations. Would the project: A Conflict with or obstruct implementation of the applicable \, air quality plan?() B. Violate any air quality standard or contribute substantially to an existing or projected air quality �+ violation?() C. Result in a cumulatively considers- able net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard(including releasing eaussions which exceed quantitative threshold's for ozone precursors)?() D. Expose sensitive receptors to substantial pollutant concentrations?() E. Create objectionable odors affecting a substantial number of people?() Y SUMMARY: 5 IV. BIOLOGICAL RESOURCES-Would the project: A. Have a substantial adverse effect, either diractly or through habitat modifications,on any species idrsrtified as a candidate, sensitive,or special stag species in Weal or regional plans,pelices, or regulations,or by the California Department of Fish and Game or U.S.Fish and Wildlife Service?{} B. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans,policies,regulations or by the California Department of Fish and Carne or US Fish and Wildlife Service?() C. Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act(including,but not limited to,marsh,vernal pool,coastal,etc.)through direct removal,filling,hydrological �V interruption,or other means?() D. Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife \ corridors,or impede the use of �•,r native wildlife nursery sites?() E. Conflict with arty local policies or ordinances protecting biological resources,such as tree preservation policy or ordinance?() F. Conflict with the provisions of an adopted Habitat Conservation Plan,Natural Community Conservation Plan,or other approved local,regional,or state habitat conservation pian? () SUMMARY: A V V. CULTURAL RESOURCES-Would the project? A. Cause a substantial adverse change in the significance of a historical \, resource as defined in¢15054.5? B. Cause a substantial adverse change in the significance of an archaeological resource pursuant ` to J 15054.5?() C. Directly or indirectly destroy a unique paleontological resource e or site or unique geologic feature? () D. Distwb any human gains, including those interred outside of formal cemetcries?() SUMMARY: . V1. GEOLOGY AND SOILS-Would the project? A. Expose people or savictures to potential substantial adverse effects,including the risk of loss,injury,or death involving: 1. Rupture of a known earthquake fault,as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial.evidenre of known fault? Refer to Division of Mmes and Geology Special Publica- tion 42.() 2. Strong seismic ground shaking? 3. Seismic-relatod ground failure,including liquefaction?{) 4. Landslides?() B. Result in substantial soil erosion or the loss of topsoil?{) 5`- les site?(} D. Substantially atter the existing drainage pattern of the site or area,including through the alteration of the course of a stream.or river,or substantially increase the rate or amount of surface runoff in a.tanner which' would result in flooding on-or offsite?() \1 F. Create or contribute runoff:`water which would exceed the capacity of existing or planned storm water drainage system or provide substantial additional sources of polluted runoff?() F. Otherwise substantially degrade water quality?() G. Place housing within a 100-year flood hazard ants as mapped on a federal Flood hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map?() H. Place within a 100-year flood hazard area sbuctures which would impede or redirect flood flows?() I. Expose people or structures to a significant risk of loss,injury or death involving flooding, including flooding as a result of the failure of a levee or dam? I. Inundation by seicbe,tsunami, \ or mudfiow? SUMMARY. DC LAND USE AND PLANNING-would the project: A. Physically divide an established community?() B. Conflict with any applicable land use pian,policy,or regulation of an agency with jurisdiction over the project(including,but not limited to the general plan, Specific pian,local,coastal PMVZM or zoning ondinarm)adopted for the purpose of avoiding or 10 mitigating an environmental effect? () C. Conflict with any applicable habitat conservation plan or natural community conservation plan?() SUMMARY: X MINERAL RESOURCES-Would the project: A. Result in the foss of availability of a known mineral resource that would be of value tache region and the residents of the state?() B. Result in the loss of availability of a locally-important mineral resource recovery site delineated on a local general plan,specific plan or other land use plan? SUMMARY: M. NOISE-Would the project? A. Exposure of persons to or generation of noise levels in excess of standards established in the local geaexal plan or noise ordinance,or applicable standards of other agencies? () B. Exposure of persons to or generation of excessive ground INV - borne vibration or ground borne noise Levels?() C. A substantial permanent increase in ambient noise Levels in the 1 project vicinity above levels existing without the project? D. A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels Misting without the project?() __.._._. 11 E. For a project located within are auport land use plan or,where such a plan has not been adopted,within two miles of a public airport or public use airport,would the project expose people residing or working in the project area to excessive noise levels? - -- F. For a project within the vicinity of a private airstrip,would the project expose people residing or working in the project area to excessive noise levels?() _ SUMMARY: XII. POPULATION AND HOUSING- Would the project: A. Induce substantial population growth in an area,ctdwx diroctly(for example,by proposing new how and bus )or directly(for example,through extension of roads or other infrastructure)? -- & Displace substantial numbers ofoxisting housing,necessitating the c onstructim of replacement -housing dwwhurc?O -C. Displace substantial numbers of peopK necessitating the construction of replacement' housing elsewhere?O __-- SUMMARY: Xfll. PUBLIC SERVICES A. Would the,project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities,need for new or physically altered governmental facilities,the construction of which could cause significant environmental mental impacts, 12 in order to maintain acceptable service ratios,response tunes or other performance objectives for any of the public services: 1. Fire Protection? 2. Police Protection? 3. Schools? 4. Parks? 5. Other Public facilities? SUMMARY: XIV. RECREATION- A. Would the project increase the use of existing neighbodiood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated?{) B. Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the envkonment?() SUMMARY: XV. TRANSPORTATIONCPRAFFIC-Would the project: A. Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (Lt.,result in a substantial increase in either the number of vehicle trips,the volume \ capacity ratio err roads,or congestion at intersections)? --- 13 B. Exceed,either individually or cumulatively,a level of service standard established by the county congafim manage- mant agency for designated roads or highways?() _ C. Result in a change in air traffic patterns,including either an increase in trafBe levels or a charige in location that results in substantial safety risks? () D. Substantially increase hazards due to a design f*=(e.g.,sharp curves or dangm*us intersections) or incompatible uses(e.g_,farm eclipmen)?() E. Result in inadequate emergency access? () F. Result in inadequate parking capacity?() G. Conflict with adopted policies, plans,or programs supporting alternative transportation(e.g., bus turnouts,bicycle racy)? _--_-- () SUMMARY: XVI. UTILITIES AND SERVICE SYSTEMS- Would the project: A. Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board?() B. Require or result in the construction of new water or wastewater treatmeat.facilitie5 or expansion of existing facilities,the construction or which could cause significant environranerttal effects?() C. Require or result in the construction of new storm water drainage facilities or expansion of existing facilities,the construction of which c oul& ceruse significant environmental D 14 D. Have sufficient water supplies available to serve the project from existing entitlement and resources, or are new or expanded entitlement needed? () R Result in a determination by the. wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected deanand in addition to the provider's existing commitments?() . F. Be served by a landfill with sufficient permitted capacity to accommodate the pmjed's solid waste disposal coeds?() G. Comply with federal;state and local statutes and regulations related to solid waste?{} SUMMARY: XVIL MANDATORY FINDINGS OF SIGNIFICANCE A. Does the project have the potential to degrade the quality of the environment,substantially reduce the habitat of a fish and wildlife species,rause a fish or wildlife population to drop below self-sustaining levels,threaten to eliminate a plant or animal community,reduce the number or restrict the range of a rate or endangered plant or aminal or eliminate important examples of the major periods of CalikKnia history or prehistory?() B. Does the project have impacts that are individually limited,but cumulatively considerable? ("Cumulatively considorabld' means that the incremental offects of project arc considerable when viewed in connection with the effects of past projects,the deeds of odor current projects,and the effects of probable future projects)? C. Does the project have environ- mental effects which will rause substantial adverse effects on Section DGS Date: September 12,2002 SECTION : PROCESS HAZARD ANALYSISIACTION ITEMS County Ordinance Code Chapter 450-8,Section 450-8.016(D)requires facilities to conduct a process hazard analysis(PHA's)on each covered process at their facility. The PHA's and PHA revalidations should be conducted in conformance with Section 2760.2 of the CalARP program regulations and Section 7.3 of the Contra Costa County CalARP Program Guidance Document except in assessing whether seismic events must be considered. Seismic events must be considered (Le,, a seismic assessment must be conducted) if the covered process (as defined in Section 450-8.014(a)of County Ordinance Code Chapter 450-8)contains a regulated substance (as defined in Section 2735.3(n) of the CaIARP program regulations) and the distance to the nearest public receptor for a worst case release scenariol is within the distance to the toxic or flammable endpoint.2 The seismic assessment should be conducted in accordance with Section 7.3.4 and Appendix B of the Contra Costa County CaURP Program Guidance Document. Additionally,County Ordinance Code Chapter 450-8,Section 450-8.016(D)requires the following for conducting PHA's. D.1 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. "Inherently Safer Systems(ISS)means Inherently Safer Design Strategies as discussed in the 19915 Center far 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." County Ordinance Code Chapter 450-8, §450-8.014(g) "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." County Ordinance Code Chapter 450-8 as amended by County Ordinance 2000-20,Section 450-8.016(D)(3). 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.3 1996 Center for Chemical Process Safety Publication Inherently Safer Chemical Processes has defined four categories for risk reduction: 1 As specified in California Code of Regulations,Title 19,Chapter 4.5;Section 2750.3 Z As specified in California Code of Regulations,Tide 19,Chapter 4.5,Section 2750.2(a) 3 Process Plants: A Handbook for Safer Design, 1998,Trevor Kletz D-1 '4 1j Section D � Date:September 12,2002 • 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 which 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% 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 thefirst 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."d 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 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 Ap rp oach,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 for process hazard analysis of new and existing processes. Approaches to consider Inherently Safer Systems include the followings: • 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 following 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 °CCPS,Inherently Safer Chemical Processes,A Life Cycle Approach, 1996 i D-2 I Section l7 low Date: September 12,2002 recommendations from process hazard analyses;the sixth section addresses Inherently Safer System Deports; and the seventh section contains definitions. As discussed in the following sections,the ISS analyses must be erformed for situations where a major chemical accident or release could reasonably occu References on the approaches to Inherently Safer Systems to consider are listed at the end of this section. D.1.1 Inherently Safer Systems Analysis for New Covered Processes The Industrial Safety Ordinance requires a stationary source to consider Inherently Safer Systems " . . . in the design and review of new processes and facilities." (§450- 8.016(D)(3)). This section describes.the different phases in the development of a project that an Inherently Safer Systems analysis should be used. Inherently Safer Systems should be reviewed early in the development phase of a new covered process and then reviewed throughout the different project desip phases. The objectives for an inherent safety review are to employ synergistic teams to: • Understand the hazards • Find ways to reduce or eliminate the hazards "The first major objective for the inherent safety review is the development of a goad understanding of the hazards involved in the process. Reducing and eliminating hazards and their associated risks is the second major objective. Applying inherent safety principles early in the productlprocess development effort provides the greatest opportunity to achieve the objectives of the inherent safety review process for the project at hand.,.7 The stationary source should use a.review process for new processes that includes an Inherently Safer Systems review at different phases of the design process such as the following phases when applicable: • During the chemistry forming(synthesis)phase for product/process research and development to focus on the chemistry and process s 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 an ISS Analysis should be done for those that could reasonably occur. 6 Composition of the review teams will vary at different phases of the development cycle of the project and with the nature of the process. In product development and design scope,the team may comprise of chemist,process design engineers,industrial hygienist,safety engineer,environmental,and control engineer etc. In the hazard and operations review phase,the team may include operations and maintenance personnel as well. A stationary source may choose not to use an ISS review team at a particular phase. If this does occur,the stationary source should document the reasons for not using a team for performing an ISS review during this.particular phase. A multi-disciplined group should be used throughout the various phases of development,implementation,and operation. 7 COPS,Inherently Safer Chemical Processes.A Life Cycle a Approach, 1996 D-3 Section D � Date: September 12,2002 • During the facilities design scoping and development prior to completion of the design basis to focus on equipment and configuration • During the basic design phase of the project CCHS understands that for different stationary sources and different projects that the above phases,timing and sequencing,may not always be applicable. For some projects, the chemistry may be complete and the chemistry-forming phase is not applicable. For some stationary sources it may be more appropriate to do inherently safer system analyses at phases that are not quite the same as described above, but is at the same approximate timing in a project development and design phases. The intent is that a stationary source conducts -inherently safer system analysis early in the project development and throughout the various phases of the design. Stationary Sources should recognize that the earlier in a project development and design the easier and less costly it is to make a change to implement Inherently Safer Systems. D.1.1.1 Applying Inherently Safer Systems Review-- Chemistry-Forming Phase Inherently Safer Systems should be evaluated early in the assessment of the project. When applicable, this assessment should be done in the chemistry-forming phase during the product and process research and development. A team with diverse background would best perform the assessment. The team assessment should address such topics as: • Understanding of the hazards • Choice of best route to produce a given chemical or product • Process improvement o Reactor types and conditions o Intermediate storage optimization o Waste minimization • Identify requirements for additional information Some of the information that may need to be available prior to this review includes the followings. • Simplified process flow diagrams o Include alternative processes • Defined chemical reactions o Desired and undesired o Develop potential for runaway reactions/decompositions • A list of all chemicals and materials employed o Develop compatibility matrix o Include air, water,rust,etc. • Defined physical, chemical, and toxic properties $Early review often will not have all of the information listed. Do not wait to complete the reviews before all of this information is developed. The later reviews should cover the information that was not available in the earlier reviews. D-4 Section D v�r� Date: September 12,2002 • Defined process conditions (pressure, temperature, etc.) • Estimated quantities used in each process system (tanks, reactors, etc.) o Estimate quantities of wastes/emissions The review team should examine the following questions: • Can safer chemicals be used? • Can quantities be reduced? • is the overall risk increased by implementing an TSS? • Can waste be reduced? (Regenerable catalyst or recyclable.) • What additional information is required? (Toxicology information, heats of reaction, or reactive chemicals data.) Documentation that should be kept for this phase of the project, when applicable, includes, but not limited to: • How the decision was made to perform an Inherently Safer Systems Review at this phase • How the assessment was performed • The assessment team leader, including the relevant experience of the team leader • The makeup of the assessment team by discipline, experience, and name of the participants • The information that was prepared and available during the assessment • How the hazards were understood, including flammability, toxicity, and reactivity • The different routes to produce a given chemical or product and how the best route was determined, including the criteria and method used for this determination • How process improvements were reviewed and the determination of the process that was determined to be the inherently safest process • The answers to such questions as those listed above • The identification of requirements for additional information D-5 Section Da. Date: September 12,2002 D.1.1.2 Applying Inherently Safer Systems Review—Facilities Design Scoping and Development Inherently safer systems should then be evaluated during the design-scoping phase of the project when applicable. The evaluation should concentrate on the following: • Minimizing equipment • Reducing inventories • Simplifying the,process • Reducing wastes • Moderating process conditions The preliminary information that should be available prior to the development phase of the project ISS review may include the following: • Process flow diagram or simplified process flow diagram • Material and Energy Balance • Defined chemical reactions • Defined physical, chemical, and toxic properties During the review the team should examine questions such as: • Previously unanswered questions • Can potential releases be reduced via lower temperatures or pressures, or elimination of equipment? • Can quantities be reduced? • Can waste be reduced? (Regenerable or recyclable catalyst.) • Can different equipment be used resulting in safer conditions? Documentation that should be kept for this phase of the project includes, but not limited to: • How the decision was made to do an Inherently Safer Systems Review at this phase • How the assessment was performed • The assessment team leader, including the relevant experience of the team leader • The makeup of the assessment team by discipline, experience, and name of participants • The information that was prepared and available during the assessment • The process used to determine that the equipment sizes are minimized and the results of this determination • The process used to determine the minimum inventories needed and the results of this determination D-6 Section D ✓S� Date: September 12,2002 • The process used to simplify the covered process, if applicable, and the results of this process • The process used to reduce the waste made from the project and the results of the determination • How the moderation of the process was done—the checklist in Attachment A could be used in this determination • The answers to such questions as those listed above • The identification of requirements for additional information D.1.1.3 Applying Inherently Safer Systems Review--During the Basic Design of the Project During this assessment phase, use of inherently safer systems should be reviewed and documented. This may be achieved using a checklist that incorporates ISS considerations such as those listed in Attachment A. Another method that may be used is the incorporation of additional parameters and guidewords such as those used in a Hazard and Operability Study.. An example of guidewords or parameters that could be used is shown in Attachment B. These analyses would review the covered processes for ways to eliminate or reduce hazards that are present in the covered process. Preliminary safety critical devices and procedures should be examined to determine if there is a way to eliminate the need for the device or procedure by applying principles of inherently safer systems. The information prepared prior to the design phase of the project should include the process safety information that is required under the Industrial Safety Ordinance and CalARP Program. Some of the information to be included with the process safety information is the following: * Process Flow Diagrams (PFD's) * Piping and Instrument Diagrams (P&ID's) • Material and Energy Balance • Equipment specifications • Designing equipment for isolation when applicable—(P&,lD's may be sufficient to address this requirement) * Preliminary safety critical procedures or guidelines • Instrumentation logic information — (P&TD's may be sufficient to address this requirement) During the ISS Study the team should consider such questions as • Can potential releases be reduced via lower temperatures or pressures, lower concentrations, elimination of equipment, by using sealless pumps,etc.? • Can quantities be reduced? •, Can waste be reduced? The documentation that should be included for the checklist analysis includes the items that are applicable from the checklist in Attachment A,what items were considered,how D-7 Section Dl Date: September 12,2002 they were considered,and the results of the consideration. For items that were applicable and not considered, document why each item was not considered. The documentation for incorporating the guidewords for inherently safer systems into a Hazard and Operability Study should be consistent with the documentation used during any Hazard and Operability Study. Other methods for performing an Inherently Safer Systems Analysis may be appropriate. If another method is used,*'the stationary source must work with Contra Costa Health Services in deterrniiiing that this inethod is appropriate for analyzing for inherently safer systems prior to implementation. The documentation must include the_makeup of the review team by discipline,relevant experience, and the names of the review leader and participants. D.1.2 Inherently Safer Systems Analysis for Existing Process Units The Industrial Safety Ordinance requires that stationary sources consider hazards as part of the process hazard analyses. "The process hazard analysis shall be appropriate to the complexity of the Covered Process and shall identify, evaluate, and control the hazards involved in the Covered Process. The process hazard analysis shall address: the hazards of the process; the identification of any previous incident which had a likely potential for catastrophic consequences; engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases." Chapter 450-8 §450-8.016(D)(1) NOTE: Inherently Safer Systems need only be considered for scenarios where a Major Chemical Accident or Release could reasonably occur. This could include a process or parts of a process. The stationary source needs to establish a method to make the determination of a potential occurrence of a Major Chemical Accident or Release. This could include examining each consequence of a deviation,including the severity of each consequence. Stationary sources should perform one of the following methods to ensure that inherently safer systems (inherent and passive categories) are considered and documented for the covered processes: « An independent inherently safer system analyses that is done in addition to a PHA9. These analyses should review the covered processes for ways to eliminate or reduce hazards that are present in the covered process. This may be achieved by using a 9 If the stationary source decides to do an independent inherently safer systems analysis,CCHS suggests that this be done in conjunction with the process hazard analysis,but it may be appropriate for a stationary source to perform an inherently safer systems analysis that is done at a different time than the process hazard analysis. Either approach meets the guidance from this document,as long as the inherently safer systems analysis is revalidated at least once every five years. D-8 Section D ' Date:Septernber 12,2002 checklist (Attachment A) or guideword analysis (Attachment B) that incorporates ISS.If the stationary source decides to use some other ISS checklist or other methods to evaluate ISS, these must be approved by CCHS prior to their use. • An inherently safer system analyses that is incorporated into the existing PHA review process. This would require that each covered process in its entirety have an initial ISS analyses conducted. (Incorporating inherently safer systems into a revalidated process hazard analysis may not be sufficient to satisfy the initial inherently safer system review if the whole process is not evaluated.) This may be achieved using a checklist (Attachment A) or guideword (Attachment B) that incorporates ISS considerations into a Hazard and Operability Study where a Major Chemical Accident or Release could reasonably occur. These analyses would review the covered processes for ways to eliminate or reduce hazards as well as risks that are present in the covered process. Whichever type of ISS analysis is implemented by the stationary source the following will need to be done: • The stationary source will develop and document their approach to evaluating ISS for existing processes. Contra Costa Health Services will review the.ISS analysis method selected to determine that the method meets the requirements of the Industrial Safety Ordinance and this guidance document. • The stationary source will document the qualifications of the team facilitator/leader and team makeup,including positions,names,and any relevant experience or training. • The stationary source will document the ISS's considered as well as those implemented. Implementing only one option to address identified hazards may not be adequate to address the greatest hazard reduction or elimination. However, it is not necessary to implement more than one ISS if the implementation of a second ISS does not add any significant hazard reduction or has been documented as infeasible. • If the stationary source chooses to do an independent inherently safer systems analysis,the stationary source should document the method used for the analysis, what inherently safer systems were considered, and the results of each consideration. If the checklist for Inherently Safer Systems was used, for items that were not considered,document why those items were not considered,i.e.,not applicable or were already considered in previous consideration. • The stationary source will document for the ISS considered and not implemented, the grounds that were used to make the feasibility determination (See D.1.4 Feasibility). D-9 Section D Date: September 12,2002 • The documentation for incorporating the guidewords for inherently safer systems into a Hazard and Operability Study should be consistent with the documentation used during any Hazard and Operability Study. • For any other inherently safer system analysis, the stationary source should document the inherently safer system considered, the inherently safer system implemented, and the inherently safer systems not implemented. • The ISS analyses should be revalidated at least once every five years. The revalidation should include and document the following: o Incorporate improvements made in method since the last review was conducted or select a new method to perform the ISS analyses. o ISS review for all changes that have been made since the last ISS analysis. o .Review of all major chemical accidents or releases or potential major chemical accidents or releases that occurred at the process under review. o Review for any new and existing technologies not previously reviewed that can be incorporated that will make the process under review inherently safer. D.1.3 process Hazard Analysis Recommendations and Mitigations The concepts as addressed in the COPS book Inherently Safer Chemical Processes A Life Cycle ARproach for looking at all four categories of risk reduction(Inherent,Passive,Active, and Procedural)should be used in the development and mitigation of recommendations from process hazard analysis as well as for considering Human Factors. ° Chapter 4 of the COPS book Inherently Safer Chemical Processes A Life Cycle Approach discusses many inherently safer system strategies that can be incorporated in the development of mitigations to address the recommendations from process hazard analysis. The stationary sources should provide guidance to personnel responsible for developing and analyzing recommendations and mitigation items resulting from the unit PHA. The guidance should include the concepts of inherently safer systems including: • The different categories of risk reductions • Moving up the different levels from procedural to active to passive to inherent levels • Approaches to apply inherently safer systems including minimization, substitution,moderation, and simplification '4 County Ordinance Cade Chapter 450-8,§450-8.016(U)(3) "Fur 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 County Ordinance Code Chapter 450-8,§450-8.016(D)(4) "For all Covered Processes, the Stationary Source shall document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study. . ." D-10 Section D Date: September 12,2002 The stationary source should document how they used the inherently safer system strategies for risk reduction in developing and analyzing mitigations to address the recommendations from a process hazard analysis. There should be sufficient detailed documentation satisfactory to CCHS and should at least include the following for the stationary sources ISS program description: . • The facility has a program in place to ensure that risk reduction actions taken to address PHA recommendations incorporate inherently safer systems. • The program incorporates at a minimum; the four levels of risk reductions described beginning on page D-1 of this document. • How the stationary source encourages moving up the levels from procedural to inherent in the implementation of the inherently safer system strategies. The stationary source should also document the implementation of ISS strategies and should include the following: • At least one risk reduction action was taken using inherently safer system strategy for each PHA mitigation item for scenarios that have the potential for a Major Chemical Accident or Release, • A description of the risk reduction method selected and the inherently safer system strategy used. • Details of risk reduction mitigation considered using the inherently safer system strategy that was not implemented. • Reasons the rejected risk reduction mitigation was determined to be infeasible using the inherently safer system strategies. D. 1.4. Feasibility The Industrial Safety Ordinance requires the stationary source to select and implement ISS to the greatest extent feasible(Section 450-8.016(D)(3)). The Industrial Safety Ordinance also defines feasible " . . . capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." To assist in the determination of feasible, Contra Costa Health Services is using a modification of the following guidance from OSHA (Federal OSHA provided guidance for justifiably declining recommendations from incident investigations in the September 1994,OSHA Instruction CPL 2-2.45A CH-1.These criteria have since been applied to recommendations formulated during PHA's.) and the U.S. PPA: • The analysis upon which the recommendations are based contains factual errors, • The recommendation is not necessary,i.e.,the safeguards may be inadequate,but the consequences are operational or the consequence or severity of the scenario would not result in a Major Chemical Accident or Release. • An alternative TSS would provide a sufficient level of hazard reduction(NOTE: Implementing only one option to address identified hazards may not be adequate to;address the greatest hazard reduction or elimination. However, it is not necessary to implement more than one ISS if the implementation of a second ISS dries not add any significant hazard reduction or has been documented as D-11 Section D Date: September 12,2002 infeasible.) • The recommendation is in conflict with existing federal, state, or local laws. • The recommendation is in conflict with Recognized and Generally Accepted Good Engineering Practices (RAGAGEP). • The recommendation is economically impractical,such that the process unit can no longer be financially operated. This can include the following factors: o Capital investment a Product quality o Total direct manufacturing costs o Operability of the plant o Demolition and future clean-up and disposal cost • The recommendation would have a negative social impact such that the project should not be implemented. Some examples of social impact include the recommendation would have a visual or noise impact on the community that is not acceptable and the recommendation would cause or increase the traffic congestion. • The recommendation may violate a license agreement and the license agreement cannot be modified and must remain in effect. • The recommendation may decrease the hazard, but would increase the overall risk. • An alternative measure would provide more risk reduction than the ISS. • If the ISS recommended is determined not to be implemented because it will create more risk,or if other modifications that are not ISS are made such that the overall risk is less than if the ISS were implemented, the stationary source will need to document how this determination was made. A qualitative risk assessment/analysis could be used as a basis for the risk analysis. The facility needs to document how they determined the qualitative severity and likelihood for the existing or modified conditions and for the conditions if the TSS is implemented. If the qualitative risk analysis shows the same level of risk,then a quantitative risk assessment/analysis should be performed to compare the risk of the existing or modified conditions to the risk if the ISS is implemented. The documentation should include the background information that was used to do the comparison of the existing or modified conditions to the conditions if the ISS is implemented. Another method may be used by the stationary source,such as a weighted scoring decision matrix as shown on page 23 of CCPS book Inherently Safer Chemical Process A Life Cycle ARoroach, if that method is approved by Contra Costa Health Services prior to the use of the method. County Ordinance Code Chapter 450-8, §450-8.016(D)(3) requires the following: "This documentation shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and (2) the reason for this conclusion." ' The documentation should include the applicable background information, calculations, and the reasons that an inherently safer system was not implemented. If there is any concern that the reasons for not D-12 .............................. Section D Date: September 12,2002 implementing an inherently safer system would not satisfy Contra Costa Health Services, the stationary source should consult with Contra Costa Health Services to determine if the justification is satisfactory. The stationary source should then receive in writing from Contra Costa Health Services their decision and how they came to their decision including background information, calculations, and alternatives considered. D.1.5 Completion of Recommended Action Items Stationary sources must document the decision made to implement or not implement all process hazard analysis recommended action items and the results of recommendations for additional study.This documentation must include the justification for not implementing any recommended actions. Federal OSHA provided guidance for justifiably declining recommendations from incident investigations in the September 1994, OSHA Instruction CPL 2-2.45A CH-1.These criteria have since been applied to recommendations formulated during PHA's. NOTE: Additionally,CCHS encourages stationary sources to consider the impact on surrounding communities when declining recommendations. • The analysis upon which the recommendation is based contains material factual errors • The recommendation is not necessary to protect the health and safety of the employer's own employees,or the employees of contractors • An alternative measure would provide a sufficient level of protection • The recommendation is infeasible Cal/OSHA issued the following clarification in Part 4 of the June 1994 Process Safety Management Guidelines. "...Cal/OSHA's intent is that an employer is required to implement the teams' findings and recommendations except to the extent that an employer can document that an alternative will be at least as effective or efficient in addressing the safety concerns that are the subject of those findings and recommendations" The stationary source must complete the recommended actions selected for implementation, including those formulated during PHA, as follows: • All actions not requiring a process shutdown must be completed within one year after submittal of the original Safety Plan or after completion of the PHA revalidation unless the stationary source demonstrates to the satisfaction of Contra Costa Health Services that within one year is infeasible • All actions requiring a process shutdown shall be completed during the first regularly scheduled turnaround of the applicable process subsequent to one year after submittal of the Safety Plan or after completion of the PHA unless the stationary source demonstrates to the satisfaction of Contra Costa Health Services that such a schedule is infeasible D-13 Section D , Date: September 12,2002 ISS Study and ISS Revalidation recommendations should be resolved in a timely manner. CCHS Staff may request that the stationary source make the plans for completing these recommendations available during facility audits. Examples of situations where the schedule maybe infeasible include procuring customized equipment requiring a long lead time for fabrication and delivery,complex projects requiring significant front-end engineering, facilities that require substantial time to construct, or implementing a recommended action that requires the application of a local air district permit to construct or county land use permit and its requirements (a CEQA analysis may be conducted.) NOTE: the stationary source must demonstrate that they initiated the land use permit process in a timely manner. The stationary source must retain documentation of closure and any associated justification of actions identified by the process hazard analysis. CCHS interprets "actions"to include, but not be limited to, all recommendations made for changes to physical equipment and procedures, and for additional studies and information. The stationary source must also retain documentation of communication to operating, maintenance, and other employees whose work assignments are in the process and who may be affected by the recommendations or actions. D.1.6 Inherently Safer System Reports An Annual report on the Industrial Safety Ordinance is made to the Board of Supervisors in October each year. Each June,Contra Costa Health Services will request information from the stationary sources for this report. Part of this information includes information on the inherently safer systems already implemented. The information on inherently safer systems should include a brief description of each inherently safer system that was implemented from June 1 -- May 31 each year that meet the definitions of the inherent or passive levels for processes where a Major Chemical Accident or Release could reasonably occur. The description should include the level of risk reduction(inherent or passive),and the basis for the inherently safer system implemented (e.g., PHA, Inherently Safer System Analysis, Review of Inherently Safer Systems for new processes or facilities). D.1.7 Definitions 1. "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%full. These systems are commonly referred to as engineering controls."11 2. Could Reasonably Occurt2'— is a relative term that depends on the severity of the incident that qualifies a scenario as a Major Chemical Accident or Release. A " CCPS,Inherently Safer Chemical Processes,A Life Cycle Approach, 1996 'Z Canadian Study D-14 Sections D Date; September 12,2002 scenario resulting in a Major Chemical Accident or Release could reasonably occur if. a. For a scenario resulting a Level 2 incident, or on-site property damage (including clean-up and restoration activities)initially estimated at$500,000 or more,the likelihood can be described by"has happen in unit,or at least at location" b. For a scenario resulting a Level 3 incident,the likelihood can be described by "has happcned at location, but very rare" c. For a scenario resulting in one or more fatalities,or greater than 24 hours of hospital treatment of three or more persons, or off-site property damage (including clean-up and restoration activities)initially estimated at$500,000 or more, or a flammable vapor cloud of more than 5,000 pounds, the likelihood is greater than "has not happened at location, and very remote" The shaded cells in the table below indicate what should be considered reasonable for the different severities Has Happen at Severity(a) Severity(b) Severity(c) Process Unit Stationary Source Never 3. Inherently Safer Systems--"Inherently Safer Design Strategies as discussed in the 1996 Center for Chemical Process Safety Publication "Inherently Safer Chemical Processes", and 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," (County Ordinance Code Chapter 450, §450-8.014(g) 4. "Inherent-Eliminating the hazard by using materials and process conditions which are nonhazardous; e.g., ,substituting water for a flammable solvent."43 "CCPS, t of h caI r A i e le A roach, 1996 D-15 Section D Ap Date; September 12,2002 5. Inherently Safer Systems Analysis — Performing a study to incorporate concepts of inherently safer systems. The analysis will include recommendations on incorporating inherently safer systems into a process. The analysis will include the documentation on how the study was performed, the recommendations from the study, and how the recommendations were formulated. 6. Less Hazardous Form—Materials being handled under conditions that is considered less hazardous. Less hazardous conditions can be accomplished by strategies that are either physical (lower temperatures, and/or pressures, dilution) or chemical (development of reaction chemistry that operates less severe conditions). Examples include: dilution, refrigerated liquids that are gases atstandard temperatures and pressures, and operating at lower temperatures and pressures. 7. Major Chemical Accident or Release-is defined by the ordinance(§450-8.014(h))as " . . . 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 September 27, 1997 Contra Costa County guideline for the Community 'gaming System as determined by the Department; or results in the release including, but not limited to, air, water, or soil of a Regulated Substance and meets one or more of the following criteria: (1) results in one or more fatalities; (2) results in greater than 24 hours of hospital treatment of three or more persons; (3) causes on and/or off-site property damage (including clean-up and restoration activities) initially estimated at $500,000 or more. On-site estimates shall be performed by the Stationary Source. Off-site estimates shall be performed by appropriate agencies and compiled by the Department.; (4) results in a flammable vapor cloud of more than 5000 pounds." 8. "Minimization — Use smaller quantities of hazardous substances (also called Intensification)',14 9. "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)"1 10. New Process - The addition of a process that did not previously exist or a major revamp of an existing process resulting in a substantial change in the process configuration or process chemistry. 11. "Passive -Minimizing the hazard by process and equipment design features which 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."16 °d CCPS,Inherently Safer Chemical Processes,A Life Cycle Approach, 1996 CCPS,Inherently Safer Chemical Processes,A Life Cycle Approach, 1996 D-16 ........................ Section D �2 91 J" Date: September 12,2002 12. "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.r,17 13. Process - Any activity involving a regulated substance including any use, storage, manufacturing,handling,or on-site movement of such substances,or combination of these activities. For the purposes of this definition, any group of vessels that are interconnected, or separate vessels that are located such that a regulated substance could be involved in a potential release, shall be considered a single process. {CCR Title 19, Section 2735.3(tt) 14. "Process Flow Diagram—A diagram that shows the material,f low from one piece of equipment to the other in a process. It usually provides information about the pressure, temperature, composition, and flow rate of the various streams,heat duties of exchangers, and other such information pertaining to understanding and conceptualizing the process."18 15. "Quantitative Risk Analysis—The systematic development of numerical estimates of the expected frequency and/or consequence of potential accidents associated with a facility or operation based on engineering evaluation and mathematical techniques."19 16. Safer Chemicals -- Chemicals where the acute and chronic toxicity, flammability, reactivity,and instability are louver. A chemical may be safer in some of these hazard categories and higher in others. The facility needs to determine the impact from a release of a chemical based on the above hazards. The chemical with the least impact should be safer. 17. "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)"20 18. "Substitute—Replace a material with a less hazardous substance„21 19. Sufficient Level of Hazard Reduction - The level where the accidental release scenario being considered is not likely to occur. References References include but are not limited to: 16 CCPS,Inherendy Safer Chemical F_rggossts.A Lift Cycle A rn oath, 1996 17 CCPS,Inherontly_Safer Chemical Processes.A Life Cycle Approach, 1996 18 CCPS,Guidelines for Process Safety in Batch Reaction Systems, 1999 '9 CCPS Gu" cline for Hazard Evaluation Procedures,Second Edition,1992 20 CCPS,Iuherendy Safer Chemical Proses es.A Life Cycle Ap rp oach, 1996 21 CCPS,Inherently Safer Ch emicsl Prwessos,A Fife C cy lc A Rroach, 1996 D-17 Section D . Date: September 12,2002 COPS, Guidelines for Engineering Design for Process Safety, 1993 COPS, Inherently Safer Chemical Processes, A Life Cycle Approach, 1996 Process Plants: A Handbook for Inherently Safer Design, Kletz, 1998 D-18 INHERENTLY SAFER SYSTEMS CHECKLIST The intent of this checklist is to stimulate discussion and thinking about process improvements, and to encourage the concept of avoiding and reducing hazards, not just preventing/ mitigating consequences of hazard by adding protective equipment. "Out-of-the-box" thinking is strongly encouraged. The content of this-checklist was extracted from CCPS "Inherently Safer Chemical Processes. A Life Cycle Approach"', and"Process Minimization: Making Plants Safer' The checklist questions are not always pertinent for an individual facility or for every phase of a project or an existing facility. The checklist should be tailored for your facility and for the stage the checklist is being applied for new processes, as follows. • During the chemistry-forming (synthesis) phase for product/process research and development to focus on the chemistry and process • During the facilities design scoping and development prior to completion of the design basis to focus on equipment and configuration • During the basic design phase of the project The checklist should also be tailored for existing process in your facility to be used during a .Process Hazard Analysis, when appropriate for the Process Hazard Analysis Team. Some items may need to be reviewed by a team that is outside of the Process Hazard Analysis Team, because the personnel with the appropriate expertise or ability may not be a part of the Process Hazard Analysis Team. Issues, such as considering the transportation of hazardous materials, may require the ability to renegotiate contracts with shippers. CCHS will review how the stationary source determined the appropriate checklist for that facility and for the stage of assessment, when the facility is audited or during an unannounced inspection. Approaches to inherently safer systems may be categorized into the following strategies. I. Minimize A. Inventory Reduction 1. Can hazardous raw materials inventory be reduced? a) Consider just-in-time deliveries b) Supplier management including strategic alliance C) On-site generation of hazardous material from less hazardous raw materials 2. Can in-process storage and inventory be reduced? a) Direct coupling of process elements b) Eliminate or reduce size,of in-process storage C) Design process equipment involving hazardous material with the smallest feasible inventory 3. Can finished product inventory be reduced? a) Improve production scheduling b) Improve communication with transporters/material handlers Revision 0—September 12, 2002 May 17, 2002 Inherently Safer Systems Checklist Page 2 ,` B. Process Considerations 1. Can the use of alternate equipment with reduced hazardous material inventory requirement be done? Such as. a) Wiped film stills in place of continuous still pots (distillation columns) b) Centrifugal extractors in place of extraction columns C) Flash dryers in place of tray dryers d) Continuous reactors in place of batch e) Plug flow reactors in place of continuous stirred tank reactors f) Continuous in-line mixers in place of mixing vessels g) Compact heat exchangers (higher heat transfer area per unit volume)in place of shell-and tube h) Combine unit operations (such as reactive distillation in place of separate reactor with multi-column fractionation train;installing internal reboilers or heat exchangers)to reduce overall system volume i) Alternate energy sources (such as lasers, W light,microwaves, or ultrasound)to control reaction or direct heat to the unit operation 2. Has the length of hazardous material piping runs been minimized? 3. Has piping been designed for reducing the piping diameters? 4. Can pipeline inventory be reduced by using the hazardous material as a gas rather than a liquid(e.g.,chlorine)? 5. Can process conditions be changed to reduce production of hazardous waste or by-products? IL Substitute A. Is it possible to completely eliminate hazardous raw materials,process intermediates, or by-products by using an alternative process or chemistry? B. Is it possible to completely eliminate in-process solvents and flammable heat transfer media by changing chemistry or processing conditions? C. Is it possible to substitute less hazardous raw materials? 1. Noncombustible for flammable 2. Less volatile 3. Less reactive 4. More stable 5. Less toxic 6. Low pressure steam rather than combustible heat transfer fluid D. Is it possible to substitute less hazardous final product solvents? III. Moderate A. Is it possible to limit the supply pressure of raw materials to less than the maximum allowable working pressure of the vessels they are delivered to? B. Is it possible to make reaction conditions (temperature, pressure) less severe by using a catalyst, or a better catalyst? C. Can the process be operated at less severe conditions? By considering. 1. Improved thermodynamics or kinetics to reduce temperature or pressure May 17, 2002 Inherently Safer Systems Checklist Page 3 2. Changes in reaction phase (e.g., liquid/liquid, gas/liquid, or gas/gas) 3. Changes in the order in which raw materials are added D. Is it possible to dilute hazardous raw materials to reduce the hazard potential? By using: 1. Aqueous ammonia instead of anhydrous 2. Aqueous HCl instead of anhydrous 3. Sulfuric acid instead of oleum 4. Dilute nitric acid instead of concentrated fuming nitric acid 5. Wet benzoyl peroxide instead of dry E. Is it possible to design uperating conditions such that materials that become unstable at elevated temperatures or freeze at low temperatures heating and cooling medium will not be operating in those ranges? F. Can process conditions be changed to avoid handling flammable liquids above their flash points? G. Is equipment designed to totally contain the materials that might be present inside at ambient temperature or the maximum attainable process temperature (i.e., higher maximum allowable working temperature to accommodate loss of cooling, simplify reliance of external systems such as refrigeration systems to control temperature such that vapor pressure is less than equipment design pressure)? H. For processes handling flammable materials, is it possible to design the layout to minimize the number and size of confined areas and to limit the potential for serious overpressure in the event of a loss of containment and subsequent ignition? I. Can process units be located to eliminate or minimize: 1. Adverse effects from adjacent hazardous installations 2. Off-site impacts 3. Can-site impacts on employees and other plant facilities J. Can process units be designed to limit the magnitude of process deviations: 1. Select pump with maximum capacity for rate of addition lower than safe rate of addition for the process 2. Maximum feed rate may be limited by pipe size to be within safe limits for gravity fed systems K. Can hazardous material liquid spill be prevented from entering drainage system/sewer? L. For flammable materials, can spills be directed away from the storage vessel to reduce the risk of a boiling liquid expanding vapor explosion (BLE'V'E)in the event of a fire? M. Passive safety design is preferred. Can passive design be implemented? For example, to prevent or reduce fire damage, an active method is automatic water spray actuated by flame or heat detector; a procedural method by having an operator turn on the water spray, or passive method by using fire insulation. N. Can PSV's in flammable service be routed to flare header instead of atmosphere? IV, Simplify A. Can equipment be designed such that it is difficult or impossible to create a potential hazardous situation due to an operating or maintenance error?Such as: May 17, 2002 Inherently Safer Systems Checklist Page 4 + 1. Easy operation of valves designed to prevent inadvertent errors 2. Simplified control displays 3. Design temperature-limited heat transfer equipment 4. Use corrosion resistant materials for the process 5. Operate at lower pressure to limit release 6. Operate at higher temperature to eliminate cryogenic effects such as embrittlement failures 7. Operate at lower temperature to prevent run away reactions or material failure 8. Use passive rather than active controls 9. Use buried or shielded tanks 10. Use fail-safe controls if utilities are lost 11. Limit the complexity and degree of instrumentation redundancy 12. Use refrigerated storage vs. pressurized storage 13. Spread electrical feed over independent or emergency sources 14. Reduce wall area to minimize corrosion/fire exposure 15. Minimize connections, paths and number of flanges in hazardous processes 16. Use fewer bends in piping 17. Use expansion loops in piping rather than bellows 18. Design into the process, equipment isolation mechanism for maintenance 19. Limit manual operations such as filter cleaning, manual sampling, hose handling for loading/unloading operations, etc. 20. Design vessels for full vacuum eliminating risk of vessel collapse 21. Design both shell and tube side of heat exchangers to contain the maximum attainable pressure, eliminating the need for pressure relief 22. Can the equipment be designed to make incorrect assembly impossible 23. Use equipment that clearly identifies status: a) Check valves with easy to identify direction of flow b) Gate valves with rising spindles to clearly indicate open or close position C) Spectacle (or figure 8)blinds instead of slip plates 24. Design the equipment with sufficient strength to contain the maximum pressure generated,even if"worst credible event" occurs? B. Can passive leak-limiting technology be used to limit potential loss of containment? Some examples include the following: 1. Blowout resistant gaskets 2. Increasing wall strength 3. Using fewer seams and joints 4. Providing extra corrosionlerosion allowance 5. Reducing vibration 6. Minimizing the use of open-ended, quick-opening valves 7. Eliminating open-ended, quick-opening valves in hazardous service 8. Improving valve seating reliability 9. Eliminating unnecessary expansion joints, hoses, and rupture disks 10. Eliminating unnecessary sight glasses/glass rotameters May 17, 2002 Inherently Safer Systems Checklist Page 5 V. Transport of Hazardous Materials A. Can the plant be located to minimize need for transportation of hazardous materials? B. Can materials be transported. 1. In a less hazardous form 2. In a safer transport method 3. In a safer route 'Center for Chemical Process Safety, "Inherently Safer Chemical Processes:A Life Cycle Approach," CCPS, AIChE,New York, 1996 Hendershot,Dennis C., "Process Minimization: Making Plants Safer," Chemical Engineering Progress, pp•35-40(January 2000). Guideword Matrix* Revision 0-September 12,2002 Minimization Sub/Eliminate Moderate Sim li Raw Material In7process storage Product Inventory Process Chemistry Process Controls Process Piping Process Equipment Process Conditions Maintenance —ting Transportation Misc.Material(i.e.solvents)__,_ *see Inherently Safer Systems Checklist for ISS examples. ................................................... ................................ . ......................... ...... .......................... -........................ - Attachment 2 Section D: Process Hazard Analysis/Action Items September 12, 2002 The Hazardous Materials Commission recommends changing Section 450- 018(A) 50018(A) to add four sentences before the last sentence which read: "Public comments on the Safety Plan shall be taken by the Department fora period of 45 days after the Safety Plan is made available to the public, The Department shall schedule a public meeting on the Stationary,Source's Safety Plan during the 45- day comment period The public meetings shall be held in the affected community on evenings or weekends. The Department shall respond in writing to all written comments received during the 45 day comment period and all oral comments received at the public meeting." The motion also recommended adding to the end of section 450-8.018(P)(4) the sentence, "The Department shall respond in writing to all written comments received during the 45 day comment period and all oral comments received at the public meeting." V. Housekeeping Changes to the Industrial Safety Ordinance the Hazardous Materials Commission would like to Submit at a Later Date as Fart of the Consent Calendar. During their review, the Commission became aware of several places in the Industrial Safety Ordinance that require small changes to clarify language, revise dates or otherwise change wording without altering the content of the ordinance. Mather than place these on the Board of Supervisor's agenda at this time, the Commission plans to present these to the Board at a later date on the consent calendar. 8 requirement to allow the County to come into compliance with the Ordinance and to give them a target at which to aim. The Hazardous Materials Commission recommends that the Board of Supervisors require the Hazardous Materials Programs to develop a plan along with a schedule to complete the public information bank required by the ISO, and have electronic accessibility complete by June 1,2003. The Board of Supervisors should further require the Hazardous Materials Programs to report back to the Hazardous Materials Commission every two months on theirprogress. 5. The Adequacy of the Public Involvement Process in the Approval of Safety Plans and Safety Programs in the Industrial Safety Ordinance PACE International Union was contracted to conduct a pilot enhanced public involvement process at the Philips refinery. Attendance for this process was low. The Commission thought several things needed to be changed to provide better public participation: • Conduct a series of on-going workshops about the overall process • Place more focus on the results of the County's audits • Develop a workbook people can use to help them understand process safety management The Hazardous Materials Commission recommends that the Hazardous Materials Programs'Public Participation Policy be changed to reflect the need to do enhanced public outreach, to make it more proactive, and to add staff as necessary to accomplish this. 6. Having a Public Comment Period for the Public Meeting Required after a Safety Plan has been Submitted,and Requiring that Oral Comments Received be Responded to in Writing. The Ordinance requires only that a public meeting be held after a Safety Plan has been submitted by a Stationary Source(450-018(A)). It requires that later a public meeting and a 45 day comment period after the County audits a Stationary Source,issues a Preliminary Determination, and receives a written response from the Stationary Source(450- 018(B)(4)). The Commission felt that also having a 45 day public comment period for the first required public meeting would likely improve public participation. The Commission also felt that many people who might be willing to come to a public meeting to give oral testimony may not be willing or able to provide a written version of their testimony. The Commission further felt that this oral testimony would be as valid as written testimony and therefore deserved the same level of response.from the County. 7 explain the basis for rejecting such revision. Such explanation may include substitute revisions. • The Department opens a 45 day public comment period and holds a public meeting on the Safety Plan once the Stationary Source's response has been received. • The Department may require modifications or additions to the Safety Plan or Safety Program based on the Stationary Source's responses or public comments, know as the Final Determination (no time requirement) • Within 30 days of the Department's Final Determination, the Stationary Source and/or any person may appeal the Final Determination to the Board of Supervisors. The Commission reviewed the language of section 450-8.018, specifically focusing on the issue of the timelines for completing required steps of reviewing and approving safety plans and safety programs. Concern had been raised that while the Ordinance had timelines for the facility to complete certain steps in the process, it did not contain many timelines for the County to accomplish their tasks. The Commission noted that the only timeline describe for the County to meet was the requirement that the County shall, within one year of the submission of the safety plan, conduct an initial audit and inspection of the facility's safety program to determine compliance with the ordinance. The Hazardous Materials Commission recommends that the guidance document for implementing the ordinance contain guidance that there should be a one-year time limit for the County to complete future required audits of a facility. The Commission also recommends that the guidelines contain a table describing the required timelines in the approval process for ease of understanding. 4. The Adequacy of the Public Information Bank Deadline and Requirements (Section 450-8.024) Section 450-8.024 of the Industrial Safety Ordinance requires the Hazardous Materials Programs to make publicly available information relevant to this program, including the use of electronic accessibility as reasonably available,by December 31, 2000. An electronic database has not been developed to date. The focus of the Commission's discussion was to determine if they should recommend amending this section to either establish a new timeline or to change the requirement. It was noted that leaving the said date as is would add pressure to complete the database electronically. While very few people have asked to look at this data, it was also noted that if people aren't informed as to the availability of the information, it is unlikely they will ask for it. If they do have an interest in this topic,they will not be able learnwhere to find this information by searching the Internet,because the database isn't on the Internet yet. It was suggested that the Commission might want to recommend amending the time 6 The term SafetyIugpection is used in section 450-018(F), "The Department may,within 30 days of a Major Chemical Accident or Release, conduct a safety inspection to review and audit the Stationary source's compliance with the provisions of Section 450-8.016. The term Incident Safety Inspection is used in section 450-018 (G), "Within 30 days of a Major Chemical Accident or Release the Department may commence an incident safety inspection with respect to the process involved in the incident pursuant to the provisions of Section 450-8.016(C). The Commission noted that these terms are used at different places in the ordinance, but no definitions are given distinguishing the difference between them. The Hazardous Materials Commission recommends that working definitions of these terms he included in the guidance document. 3. The Adequacy of the Overall Timelines and Deadlines of Section 450-8.018 Section 450-8.018 lays out the schedule for implementing the review, audit and inspection elements of the ordinance as follows: • A Stationary Source submits their Safety Plan. • The Department provides a written notice of Deficiencies, if any (no time requirement). • The Stationary Source has 60 days(with a 30-day optional extension)to correct deficiencies. • The Department determines that the Safety Plan is complete(no time requirements) • The Department holds a public meeting to take public comment(no time requirement). • The Department conducts an initial audit of the Stationary Source's Safety Program within one year of the submission of the Safety Plan to determine compliance. • The Department issues a Preliminary Determination that explains the basis for any modifications or additions required to bring the Safety Plan or Safety Program into compliance with the requirements of the Ordinance(no time requirement). • The Stationary Source has 90 days to respond to the Preliminary Determination, stating that they will incorporate the required revisions, or that they reject the revisions, in whole or in part. For each rejected revision, the Stationary Source shall 5 _.. The proposal by Hazardous Materials Programs staff would not change the language of this section, but instead change the definition of Catastrophic Release to that used in the Process Safety Management law, 29C1~R1910.119(b)which is: A major uncontrolled emission,fire, or explosion,involving one or more highly hazardous chemicals, that presents serious danger to employees in the workplace. (Note--if this motion is adopted,the wording of section 450-8.016(A) and(D) may need to be changed for all processes at a covered facility to be subject to this requirement.) IV. Additional Issues Considered by the Hazardous Materials Commission At the same time they considered the four proposed amendments to the Industrial Safety Ordinance referred to them by the Board of Supervisors,the Hazardous Materials Commission chose to conduct a complete review of all sections of the ISO. They focused on thirteen areas of the ordinance determined by an initial review to merit further consideration. They are asking the Board of Supervisors to consider recommendations for six of these areas. 1.The Necessity,of Additional Timelines in the Root Cause Section, 450-8.016(C) This section of the ISO requires Stationary Sources to conduct a Root Cause analysis for each Major Chemical Accident or Release which occurs. The Stationary Source is required to periodically update the Department on facts related to the release and the status of the Root Cause Analysis, and within 30 days of completing a Root Cause Analysis they have to submit a final report. However,the ISO does not contain any deadline for how long a Stationary Source has to complete their Root Cause analysis. The committee expressed concern that the ordinance does not contain any timeline for a facility to complete a root cause analysis. The Hazardous Materials Commission recommends that the guidelines for implementing the Ordinance include language directing facilities to make reasonable and timely progress towards concluding a root cause analysis, and at a minimum, supply an update report to the County every 30 days 2. The Consistency and Clarity of the Terms Incident Investigation, Safety Inspection, and Incident Safety Inspection The term Incident Investigation is used in section 450-015(C)(2), "The Department may elect to do its own independent Root Cause analysis or incident investigation for a Major Chemical Accident,or Release. 4 (Note—if this motion is adopted,the wording of section 450-8.016(A) and (D) may need to be changed for all processes at a covered facility to be subject to this requirement.) At their September 17, 2002 meeting the Board of Supervisors considered this proposed amendment and alternate language verbally presented by Hazardous Materials Programs staff designed to achieve the same goal. They directed staff to return with the following side-by-side written comparison of the two alternatives for their consideration. The current definition of Catastrophic Release used in the ordinance is: A major uncontrolled emission,fire, or explosion,involving one or more regulated substances that presents an imminent and substantial endangerment to public health and the environment. PEHAB recommends using the term Major Chemical Accident or Release that is defined as: 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 September 27, 1997 Contra Costa County guideline for the Community Warning System as determined by the Department; or results in the release including, but not limited to, air, water, or soil of a Regulated Substance and meets one or more of the following criteria: (1) results in one or more fatalities, (2) results in greater than 24 hours of hospital treatment of three or more persons; (3) causes on and/or off-site property damage (including clean-up and restoration activities)initially estimated at$500,000 or more. On-site estimates shall be performed by the Stationary Source. Off-site estimates shall be performed by appropriate agencies and compiled by the Department.; (4) results in a flammable vapor cloud of more than 5000 pounds. The definition of a level 2 incident is: 1. Off-site impact where eye,skin, nose and/or respiratory irritation may be possible. 2. Explosion with noise/pressure wave impact off-site. 3. Fire/smoke/plume (other than steam)visible off-site (does not include fire training exercises). 3 • Hazardous Materials Programs staff should add a section to the existing guidelines for implementing the Industrial Safety Ordinance describing how to conduct Inherently Safer Systems analyses as part o,f, or in conjunction with, the P1IA process, while not limiting the analyses to PHA mitigation items. This addition to the guidelines should reflect a deftmition of ISSs that is limited to the inherent and passive layers of protection. • The addition to the guidelines should provide a working definition of`feasibility" that takes into consideration overall risk of a proposed action, and the need to balance negligible benefits against large costs In response to this recommendation, Hazardous Materials Programs staff made changes to the guidelines for implementing the Industrial Safety Ordinance. These changes are in Attachment 2. No additional actions are requested of the Board of Supervisors at this time. II. Recommendation Concerning Contractor Training Requirements At their September 17 and,Oetober 8, 2002 meetings the Board of Supervisors considered the recommendations made on this issue by PEHAB and HMC. They directed staff to prepare a proposed amendment for consideration at the November 5, 2002 Board meeting. This proposed amendment is being addressed under a separate Board Order. III. Incorporating the Triangle of Prevention Program into the Ordinance At the December 4, 2001 Board of Supervisors meeting,while discussing the other three proposed amendments to the ISO discussed above,the Board of Supervisors requested PEHAB and the HMO;to consider the appropriateness of incorporating elements of the Triangle of Prevention(TOP)program into the ordinance. Rather than mandate this particular program, PEHAB and HMC felt facilities should be given a general mandate to improve safety and should select the program that best fits their particular circumstance. They recommended against incorporating elements of the TOP program directly into the ordinance. However, PEHAB felt that the language of section 450-8.016(A)(9)—Incident Investigation— should be strengthen to ensure that facilities investigate the largest number of incidents that may lead to an impact on the surrounding community and environment. They felt a wider range of accidents would be investigated using the term Major Chemical Accident or Release rather than the term Catastrophic Release as is currentlred in the ordinance. Therefore,they recommended that the language of section 450-8.016(A)(9)(a) be amended to read: The Stationary Source shall investigate each incident which resulted in, or could reasonably have resulted in it eatastFephie release a Major Chemical Accident or Release of a regulated substance. 2 Attachment 1 Actions Requested of the Board of Supervisors in Response to Recommendations Made by the Public and Environmental Health Advisory Board and the Hazardous Materials Commission Concerning the Industrial Safety Ordinance At the December 4, 2001 meeting, the Board of Supervisors asked the Hazardous Materials Commission(HMC) and the Public and Environmental Health Advisory Board (PEHAB)to review and provide recommendations on four proposed amendments to the County's Industrial Safety Ordinance(ISO). Two of these proposed amendments dealt with the role of Inherently Safer Systems in conducting Process Hazard Analyses at facilities. The third proposed amendment recommended changes to the contractor training requirements contained in the ordinance. The fourth proposed amendment suggested incorporating the elements of a specific accident prevention program, the Triangle of Prevention program, into the ordinance. The Hazardous Materials Commission had previously held a retreat on March 22, 2001 to plan their priorities for the upcoming year. One of the priorities that emerged from that planning process was to undertake a comprehensive review of the ISO. In response to the December 4, 2001 referral from the Board,the Hazardous Materials Commission decided to review and develop recommendations for these four new proposed amendments as part of their comprehensive review of the ISO. On September 17, 2002 the Hazardous Materials Commission and the Public and Environmental Health Advisory Board presented their recommendations to the Board of Supervisors in a Board Order dated July 23, 2002. At that meeting the Board of Supervisors took action on some of those recommendations. In response to other recommendations they asked for additional information to be presented to them for further consideration. They were not able to consider the remaining recommendations because of time constraints. This report describes the status of each recommendation and the specific action requested of the Board of Supervisors in response to each of these recommendations. I. Recommendations Concerning the Role of Inherently Safer Systems in Conducting Process Hazard Analyses At their September 17, 2002 meeting the Board of Supervisors endorsed the following recommendation made by both PEHAB and HMC concerning Inherently Safer Systems: • No changes to the language of the Industrial Safety Ordinance pertaining to these proposed amendments should be made at this time. 1 Y Office of the County Counsel Contra Costa County 551 Pine Street, 9th Floor Phone: (925)335-1800 Martinez, CA 94553 fax: (925)646-1078 Date: November 28,2001 To: Board of Supervisors From: Silvano B.Marchesi, County Counsel Re: Legal Opinion on Proposed Amendments to.Industrial Safety Ordinance On June 12, 2001,the Board discussed an opinion issued(at the Board's request)by the .California Attorney General on potential additional exposure to liability based on the enactment of proposed amendments to the Industrial Safety Ordinance. On that date the Board directed County Counsel to obtain a legal opinion from an attorney in private practice, as a peer review of the Attorney General's opinion. As the result of the issuance of a Request for Proposal, this office selected Thomas G. Manning,of the firm of Craddick, Candland &Conti to provide the opinion. Mr.Manning has considerable experience in the field of tort litigation involving public agencies and is well familiar with the California Tort Claims Act. Attached is Mr.Manning's opinion. cc: John Sweeten,County Administrator William B. Walker,MD,Health Services Director Dennis M.Barry,AICD, Community Development.Director Silvano B. Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY-INDUSTRIAL SAFETY ORDINANCE Page 2 "For all covered processes [processes at the facility],the stationary source [facility] 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. The stationary source shall select and implement inherently safer systems to the greatest extent feasible. If a stationary source concludes that an inherently safer system is not feasible, the basis for this conclusion shall be documented in meaningful detail. This documentation shall include(i) sufficient evidence to demonstrate to the county's satisfaction that implementing this inherently safer system is impractical, and(ii)the reasons for this conclusion. A claim of'financial infeasibility' shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to .render the inherently safer system as impractical." Section 450-8.014(c) and(g) define "Inherently Safer Systems" and"Feasible" as follows: "(g) 'Inherently safer systems'means inherently safer design strategies as discussed in the 1996 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." [emphasis added]. "(c)'Feasible'means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." Section 450-8.016(D)(4)states in pertinent part: "For all covered processes, the stationary source shall document the decision made to implement or not implement all process hazard analysis recommended action items.... For recommended actions not selected for implementation, the stationary source shall include the justification for not implementing the recommended action. ... Any documentation justifying a decision not to implement a process hazard analysis recommended action shall include(i) sufficient evidence to demonstrate to the county's satisfaction that implementing this inherently safer system is impractical, and(ii)the reasons for this conclusion. A claim of'financial infeasibility' shall not be based solely on evidence of reduced profits or increased costs,but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical." The matter at issue concerns a proposal(with no specific language)by persons interested in safety at oil refineries and chemical manufacturing facilities to amend the ordinance. The g Silvan B. Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY-INDUSTRIAL SAFETY ORDINANCE Page 3 proposed amendment would authorize the County's Health Services Department to require a facility to use an "inherently safer system" or take a recommended action stated in its process hazard analysis, despite the facility's objection and conclusion that such use or action is not "feasible." Thus, under the proposal, the Department could require a facility to use particular equipment, manufacturing or refining processes, or management procedures. Proponents have testified that such additional authority could be exercised to require a facility to use equipment, processes, or other practices that already are in use in other similar facilities. County Counsel asked the Attorney General to assume that the facility asserts (with documentation)that a proposed inherently safer system or recommended action item is not feasible,in other words, that the proposed system or action is not capable of being accomplished in a successful manner within a reasonable period of time,taking into account economic, environmental, legal, social, and technological factors. As indicated above,by definition an "inherently safer system" is feasible. County Counsels'question to the Attorney General was: Question : Would the county expand its exposure to liability under the Tort Claims Act by taking a discretionary action to require the stationary source to use an inherently safer system or take a recommended action item? DISCUUSSION (1)Liability based on the County's enactment or failure to enact the proposed amendment As the Attorney General notes, generally, under the California Tort Claims Act, a county is not liable for an injury "caused by adopting ... an enactment." Gov't Code, Sec. 818.2. Goveniment Code, Section 821 confers the identical immunity on public employees. "Enactment" includes ordinances. Gov't Code, Sec. 811.6. See,Land Waste Management v. Contra Costa Co=Board of Supervisors (Vt Dist. 1990) 222 Cal.App.3d 950, 962-963,271 Cal.Rptr. 909; CEB, Cal. Government Tort Liability Prac., 4th ed. May 2001 Update, at Sec. 10.50,p. 582. Generally, a county is also not liable for an injury"caused by ... failing to adopt an enactment." Gov't Code, Sec. 818.2. A substantially identical immunity is conferred on public employees by Government Code, Section 821. See, Land Waste, sum, at 962-963; CE$, surra, at Sec. 10.52,p. 584. Thus, the County and its employees would not be liable if the proposed ISO amendments were not enacted and someone sustained an injury. (2) Liability based on the County Health Services Department's requiring of a facility to use an inherently safer system or recommended action Silvano B. Marchesi,Esq. November 26,2001 CONTRA COSTA COUNTY - INDUSTRIAL SAFETY ORDINANCE Page 4 As the Attorney General indicated, Washington v. County of Contra Costa(1995} 38 Cal.App.0 890, 45 Cal.Rptr.2d 646, is the case most closely on point, and provides a framework for analysis. The Washington Court explained that the first issue to be considered is the existence of a duty; if a duty exists,the second issue is whether statutory immunity provides a defense. In Washington, General Chemical Company, in Richmond, California, allegedly operated a sufuric acid manufacturing facility. Hazardous materials allegedly leaked from rail tank cars while the company's employees were unloading them. The plaintiffs sued the company as well as the County. Against the County,the plaintiffs asserted various causes of action. Their primary theory was that the County had failed in duties imposed on it by Health and Safety Code, Chapter 6.95,pertaining to the regulation of handling,release and threatened release of hazardous materials. The plaintiffs alleged that the County failed to implement and enforce "mandatory enactments" and regulations designed to protect the public, and failed to take required actions to protect the public after the release of the hazardous materials. Washington. ssunra, at 894-895. The County demurred. The trial court took judicial notice of documents submitted by the County relating to its regulation of the company's activities, and sustained the demurrers without leave to amend. Washington, surra, at 895. The Washington Court held that the County had no duty to prevent release of hazardous materials on the facts. The Court reasoned that liability of a county for failure to take action must be based on statute. Government Code, Section 815.6,provides that where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind caused by its failure to discharge that duty. The Washington plaintiffs did not focus on any particular statute as the basis for their claim of statutory mandatory duty. Instead,they generally cited Health and Safety Code, Section 25500 et sem. The Court concluded that this general citation did not satisfy the requirement that the plaintiff specifically allege the applicable statute or regulation, in order to establish Section 815.6 liability. The Court concluded that none of the specific directives contained in Chapter 6.95 supported a cause of action under the facts alleged by plaintiffs. Washington, sera, at 896-897. The Court held that the complaint stated no grounds for holding the County liable for the breach of a mandatory statutory duty. Washington, surra, at 898. The Washington Court observed that "[w]e are unable to find anything in chapter 6.95 specifically directing an'administrative agency,' such as the County, to prevent any release of hazardous materials...." Washington, supra, at 897. Chapter 6.95, entitled "Business and Area Plans," concerned the development and review of business plans relating to the handling and release or threatened release of hazardous materials. The business is required to submit to the County a plan for emergency response to the release of a hazardous material,and the County is directed to review the plan and develop an "area plan" for emergency response to a release. Health and Safety Code, Sec. 25503, 25503.5, and 25505. Washington, supra, at 897. Under Health and Safety Code, Section 25505.5, the County may not be held liable for any negligence in its review of the business plan. Ibid. Silvano B. 1vlarchesi, Esq. November 26,2001 CONTRA COSTA COUNTY-INDUSTRIAL SAFETY ORDINANCE Page 5 Under Health and Safety Code, Sections 25503(e)(1),25508, and 25537, the County must submit a plan to conduct on-site inspections of businesses and must conduct inspections. Under Section 25503(e)(1) and Government Code, Section 818.6, the County is immune from liability for failure to mare an inspection or for negligence in its inspections. Washingion, su a, at 898. The Court found that under the circumstances it did not need to consider whether the general government immunity for discretionary, as opposed to mandatory, acts,provided additional grounds for sustaining the demurrer. Washintg_on, sura, at 899. The Court considered whether the County might be held liable on the grounds that it had a"'special relationship"" with the plaintiffs. The Court concluded that the County would not be liable because "[t]he County here did not create a foreseeable peril. Its duties were to oversee businesses...to see that such businesses did not create a foreseeable peril." Washinsit6n. surra, at 899 [emphasis added]. The Court had already concluded that the statutes defining the County's duty to oversee businesses for this purpose could not form the basis of any liability on the facts alleged in the complaint. Ibid. Additionally, it had been recognized that a duty to warn in „'special relationship"' cases arises only when there is a direct or continuing relationship between the state and a particular, identifiable plaintiff. Ibid. Further, even if there were a duty based on a"'special relationship"',Health and Safety Code, Section 25400,provided immunity under the facts alleged in the complaint. Washin tgoon, supra, at 899-900. Section 25400(b)provides in pertinent part: "a public entity ... shall not be liable for any injury or property damage caused by an act or omission taken by a county public health director, a public safety employee, ... a person authorized by a public entity, or a registered sanitarian employee acting within the scope of employment to abate or attempt to abate hazards reasonably believed to be an imminent peril to public health and safety caused by the discharge, spill or presence of a hazardous substance,unless the act taken or omission was performed in bad faith or in a grossly negligent manner." Section 25400(c)provides: "For the purposes of this section, it shall be presumed that the act or omission was performed in good faith and without gross negligence. This presumption shall be one affecting the burden of proof"' Section 25400(d)provides in pertinent part: "(2) 'Imminent peril'includes a period which, if not mitigated,threatens the public health or welfare, or the environment." Silvano B. Marehesi,Esq. November 26,2001 CONTRA COSTA COUNTY -INDUSTRIAL SAFETY ORDINANCE Page 6 The Washinjiton Court concluded that the County could not be held liable for allowing a public or private nuisance or allowing a dangerous condition to exist. Government Code, Section 835,permits such suits only if the property is owned or controlled by the public entity; the public entity may not be held liable for failing to abate a nuisance existing on private property. Washington, supra, at 900. The plaintiffs' cause of action for violation of civil rights failed because the County owed no duty to the plaintiffs to protect them from the effects of the release of hazardous materials. Washington, surra, at 900. Under Washington the County will not be held liable under a mandatory duty, as long as the proposed amendment is drafted to constitute review of the facility's business plan. In addition,however, as noted, under Was ' on,while immunity applies, a county has liability for failure to prevent release of hazardous materials if it violated a statute imposing a mandatory duty under Government Code, Section 815.6, or acted in bad faith, or acted in a grossly negligent manner in its review of a business plan or inspection of the company's property. A plaintiffs counsel presumably would argue that an issue exists as to whether the defendant acted in bad faith or was grossly negligent, and that such findings are for the jury to determine. The first point is discussed below. (J)Liability based on acts or omissions constituting an exercise of discretion in making basic policy decisions at the planning, rather than the operational level of decision making. The County's query assumes that the County's official has taken "a discretionary action", rather than a ministerial action. As the Attorney General notes, Government Code, Section 820.2,provides for discretionary immunity for public employees. Section 820.2 states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him,whether or not such discretion be abused." The Supreme Court explained in Caldwell v. Montoya(1995) 10 Cal.4th 972, 981, 42 Cal.Rptr.2d 842: " a'workable definition'of immune discretionary acts draws the line between'planning' and'operational'functions of government. [citation]. Immunity is reserved for those basic policy decisions [which have] ... been [expressly] committed to coordinate branches of government,`and as to which judicial interference would thus be'unseemly.' [citation]. Such'areas of quasi-legislative policy-making ... are sufficiently sensitive' [citation] to call for judicial abstention from interference that 'might even in the first instance affect the coordinate body's decision-making process.' [citation]. "On the other hand ... there is no basis for immunizing lower-level, or'ministerial,' decisions that merely implement a basic policy already formulated.' [citation]. Moreover, 119V Silvana B.Marchesi, Esq. November 26, 2001 CONTRA COSTA COUNTY-INDUSTRIAL SAFETY ORDINANCE Page 7 we cautioned, immunity applies only to deliberate and considered policy decisions,in which a'[conscious] balancing [of] risks and advantages ... took place. ...' [citation]." [emphasis in original]. The discretionary immunity of public employees is made applicable to public entities under Government Code, Section 815.2(b). For example, in Odello Brothers v. County ofMontergy(1998)63 Cal.App.4`h 778, 73 Cal.Rptr.2d 903, the county breached a levee in order to prevent flooding in residential and commercial areas. The breach flooded the plaintiffs property, creating lakes in the plaintiffs agricultural fields. The plaintiff sued the county for trespass and inverse condemnation. As to the tort claim for trespass, the appellate court concluded that Section 820.2 applied. The County's decision with respect to its flood plan, as well as its decision to breach the levee in a particular manner were plainly acts within the County's discretion. "These decisions reflect policy choices for which the responsibility has been committed to a coordinate branch of the government rather than a determination at'the ministerial rung of official action."' [citation]. dellosurrra, at 793. The amendment to the ISO had not been drafted when the AG had considered this issue and, of course, a lawsuit has not been commenced based thereon. If only planning or discretionary action by the County officials, rather than operational or ministerial action,will be at issue and the Section 820.2, immunity will apply. The Washington Court explained that Health and Safety Code Section 25500_el seq., does not impose a mandatory duty to prevent the release of hazardous materials, (Washingt,on, supra, at 898), however, if the County takes the additional step of enacting the proposed ISO, a potential issue will be created as to whether the ordinance imposes a mandatory duty. The California Supreme Court,in Haggis y. City of Los Angeles(2000)22 Ca1.40,490, 93 Cal.Rptr.2d 327, 993 P.2d 983, explained that applicdtion of Section 815.6 requires that the enactment at issue be obligatory,rather than merely discretionary or permissive, in its directions to the public entity. It must require,rather than merely authorize or permit,that a particular action be taken or not taken. It is not enough that the public entity have been under an obligation to perform a function if the function itself involves the exercise of discretion. The question of whether an enactment creates a mandatory duty is a question of law. Haggis, sura, at 499. The Supreme Court, in Barner v. Leeds(2000) 24 Cal.41h 676, 102 Cal.Rptr.2d 97, explained that under Caldwell v. Montoya(1995) 10 Cal.41h 972, 42 Cal.Rptr.2d 842, 897 P.2d 1320, not all acts requiring a public employee to choose among alternatives entail the use of "discretion"within the meaning of Government Code, Section 820.2,providing immunity for county employees. Under Section 820.2, immunity is reserved for those "basic policy decisions" which have been expressly committed to coordinate branches of government and as to which judicial interference would thus be unseemly. There is no basis for immunizing lower level Silvan B. Marchesi,Esq. November 26,2001 CONTRA COSTA COUNTY-INDUSTRIAL SAFETY ORDINANCE Page 8 decisions that merely implement a basic policy already formulated Barrer, §Mora, at 684-685; Caldwell, suvra, at 981. If members of the public are harmed by release of a hazardous material,presumably litigation would ensue on the question of whether the County's ordinance created a mandatory duty by requiring that a particular action be taken by the County employees. The Attorney General concludes that the County employees' conduct would be discretionary,because the mandated changes would be based upon relevant studies conducted at similar facilities located throughout the country. Therefore, each decision would be considered a policy determination, balancing the risks and advantages. However, it seems just as likely that a Court would find that the County employees" conduct,pursuant to the proposed ISO,would fall within the operational functions of the County, the "basic policy decisions"being those made to formulate the factors which the County employees were directed to consider in enforcing the ordinance. Additionally, an issue might exists as to whether the County has potential liability to the stationary source for requiring it to use an inherently safer system or take a recommended action that the stationary source has documented is not feasible. Industrial Safety Ordinance Section 450-8.014(c) defines "feasible" as "capable of being accomplished in a successful manner within a reasonable period of time,taking into account, economic, environmental, legal, social, and technological factors." Thus, the County would be ordering a stationary source to perform activities which it has determined,with appropriate documentation, it cannot perform without adverse effect. Government Code, Section 818.4,provides that a public entity is not liable for an injury caused by the failure or refusal to issue any permit, license, certificate, approval, order, or similar authorization. However, Section 818.4 grants immunity only with respect to discretionary activities. Morris v. Marin Co. (1977') 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606. "Thus, the same issue noted above would exist with regard to liability to the stationary source,whether the County employees' conduct is mandatory or discretionary. Very truly yours, THOMAS G. TGM:sak D.3 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Date. November 5, 2002 Matter of Record On this date, the Chair directed the following matter be placed on the December 3, 2002 agenda for consideration: 1. Accept the attached report from the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. 2. Consider and adopt the recommendations made in this report concerning proposed changes to the Industrial Safety Ordinance and endorse proposed changes to the implementation guidelines. THIS IS A MATTER FOR RECORD PURPOSES ONLY NO ACTION WAS TAKEN Attachment 1 Actions Requested of the Board of Supervisors in Response to Recommendations Made by the Public and Environmental Health Advisory Board and the Hazardous Materials Commission Concerning the Industrial Safety Ordinance. 15 human beings,cidw°directly or indirccdy7() SUMMARY: j:*roupsWadpootlshetts`CCho,Adis.n99 Initial Study,Ordinance 9549 _ August 5, 1995 Page 35 VII. Notice of Intent to Adapt a Negative Declaration (follows) TSpgM.doc,8/5199,Page 2 AICP Commis el Community Contra Community Development pirec Development Costa Department 'County County Administration Building 651 Pine Street _ 4th Floor,North Wing r . Martinez,California 94553-0095 Phone: (925)335-1210 August 5, 1999 NOTICE OF PUBLIC REVIEW AND'INTENT TO ADOPT A PROPOSED NEGATIVE DECLARATION COUNTY ORDINANCE 98-48 (Industrial Safety Ordinance) Pursuant to the State of California Public Resources Code and the "Gifidelines for Implementation of the California Environmental Quality Act of 1970" as amended to date,this is to advise you that the Community Development Department of Contra Costa County has prepared an initial study on the following project: The adoption of County Ordinance 98--48 (the Industrial Safety Ordinance) and on the Stipulated Judgement Items 7(a), (b) and(c). The proposed development will not result in any significant impacts. A copy of the negative declaration and all documents referenced in the negative declaration may be reviewed in the offices of the Community Development Department, and Application and Permit Center at the McBrien Administration Building, North Wing, Second Floor, 651 Pine Street, Martinez, during normal business hours. Public Comment Period-The period for accepting comments on the,adequacy of the environmental documents extends to 5:00 P.M., September IS, 1999. Any comments should be in writing and submitted to the following address: Dame: Debbie Sanderson Community Development Department Contra.Costa County 651 Pine Street,North Wing, 4th Floor Martinez, CA 94553 AUG 5 1.999 S.L.WEIR.COUNTY CLERK CONTRA COSTA COUNTY BY .. "'.GL1'iJTY Office Hours Monday-Friday:8:00 a.m.-5:00 p.m. Office is closed the 1 st,3rd&Sth Fridays of each month It is anticipated that the proposed Negative Declaration will be considered for adoption at a meeting of the County Planning Commission on October 12, 1999 at 7:30 P.M. The hearing is anticipated to be held at the McBrien Administration Building, Room 107, Pine and Escobar Streets, Martinez. It is expected that the County Planning Commission will also conduct a hearing on the application at that same meeting. Additional meetings will be held by the County Community Development Department and the City of Richmond Planning Department at the following dates and times, in Room 108 of the McBrien Administration Building, concerning this proposed project (beyond the CEQA concerns); Thursday, August 26, 1999 at 10:00 A.M. Wednesday, September 8, 1999 at 1:30 P.M. Debbie Sanderson Special Projects Planner cc: County Clerk's Office (2 copies) noiltr- It z I Initial Study,Ordinance 98-48 August 5, 1999 Page 36 Attachment A: Hazard Score Disk Scenarios, prepared by the Hazardous Materials Commission. (follows) 6✓ y Initial Study,Ordinance 98-48 August 5, 1999 Page A-1 Attachment A Prepared by Health Services Department for the Hazardous Materials Commission Staff reviewed approximately 87 land use scenarios originally evaluated by the Hazardous Materials Commission in 1996 and 1997. These scenarios were used as a basis for establishing the hazard score necessary to require facilities to obtain land use permits for development projects. The maximum hazard score possible using the Hazard Sere Formula included in Section 84-63.1004 is 176. Many of the scenarios within the 60 to 80 point range are actually variations of original scenarios that scored greater than 80 points. Variables such as distance to receptor, material used, and size of project were manipulated to determine the lowest feasible hazard score that could be attained while keeping the development project a viable option. The Hazardous Materials Commission also identified the variables necessary to obtain a hazard score of 60. This often resulted in development projects that were not viable options (i.e., a hazard score of 60 was unattainable even by reducing the hazards associated with some development projects). The Hazardous Materials Commission concluded that if the hazard scare required to obtain a land use permit was too low, there would be no incentive for facilities to incorporate hazard reduction measures into their original development project. For example, the first bulletin the 80-89 point range (Gasco Refinery)includes storage of a Hazard Category B material 3,400 feet from a receptor. The material is transported to and from the facility by rail The second bullet in the 70.79 point range is the same scenario(Le., Gasco Refinery)only the facility has opted to move the storage vessel farther from receptors (8,850 feet as apposed 3,400 feet) and to transport to and from using amarine vessels as opposed to rail. 'These changes decrease the hazards, and therefore, the hazard score, associated with the project. If the hazard score required to trigger a land use permit is 60, the facility may not elect to incorporate these changes into the original development project. They have to go through the land use permit process and may or may not be asked to incorporate these mitigations through the CEQA process. If the hazard score required to trigger a land use permit is 80, the facility will not have to go through the land use permit process if the elect to incorporate these changes. A representative sample of the scenarios between the 60 to 89 point range is shown below. NOTE:These scenarios are shown for demonstration purposes only. The difference between many'of these scenarios is simply the type of receptor and distance to receptor. If these were actual scenarios, the facility would compute the hazard score based on each receptor type and distance to receptor combination and report the greatest hazard score. .3 .S Initial Study,Ordinance 9848 August 5. 1999 Page A-2 Revisions to the June 7, 1999 Initial Study. Italicized text represents additions to or corrections of these scenarios as presented in the earlier version of this Initial Study. 50-59 * Delta Chemical Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid(Hazard Category B) and increasing storage capacity from 1,000 gallons to.8 tons.The new tank is 4801 feet from a residential receptor. There will be a 25% increase in truck transportation and a .74%increase in Hazard Category B storage. (59; not a viable alternative because of the small storage capacity) * Facility XYZ proposes to replace a 1000 gallon hydrochloric acid(37°,!)tank due "to the tank's age and condition with a 2000 gallon tank. The tank is located approximately 3000 feet from residential receptors. The larger tank results in increased storage of 15°1. (53) Revisions to the June 7, 1999 Initial Study. The point score 52 assumed that the development project included both removal of the old tank and construction of the new tank. The size of project was:incorrectly assumed to be 1000 gal. A point score of 53 is obtained if the development project only includes construction of the new tank. The size of project should therefore be ,2000 gallons * The facility proposes to construct an MTBE manufacturing unit(producing about 2500 barrels/day) using 900 barrels/day of methanol and 2100 barrels/day of an existing isobutylene stream. The 46,000 tons/year of methanol would be delivered via rail and would result in a 15%increase in rail traffic. The project is construction of the processing unit and a 100,000 barrel tank. This is a less than 1%increase of hazardous materials use. The construction area is located 2 miles from a residential receptor(61). Revisions to the June 7, 1999 Initial Study. The project size, "A" was incorrectly assigned a value of 25 which corresponds to 4,000 tons to,6,000 tons. The correct value of"A"is 27 which corresponds to 10,000 tons to 18,000.tons. .NO7�this project would require a land use permit, regardless of score, because it is a new process unit with a hazard category B material(Section 84-63.1002(c)). * A major supplier of compressed gases proposes to store 62.5 tons of carbon dioxide(Hazard Category C) at a new site located 1584 feet from a residential receptor. The compressed gases will be shipped by truck. (59) * A major supplier of compre'seed gases proposes to store 62.5 tonsofcarbon dioxide(Hazard Category C) at a new site located 3696 feet from a sensitive receptor. The compressed gases will be shipped by truck. (55). Revisions to the June 7, 1999 Initial Study. NOTE: The score was incorrectly calculated based on a.distance to receptor of 3969 feet which corresponds to a "D"value of 16 as opposed to a distance to receptor of 3696 feet which corresponds to a "D"value of 17. Y Initial Study,Ordinance 98-48 August 5, 1999 Page A-3 • A facility proposes adding a 5000 gallon storage tank to fuel trucks(Hazard Category B) doing maintenance on site. This results in a 2% increase in truck transportation and a .6% increase in storage capacity. The tank will be located 750 feet from a residential receptor. (55) 60-69 Delta Chemical.Company proposes switching from hydrogen chloride (Hazard Category A) to hydrochloric acid(Hazard Category B) and increasing storage capacity from 1,000 gallons to 5,500 gallons.The new tank is 4801 feet from a residential receptor. There will be a 25% increase in truck transportation and a 25% increase in Hazard Category B storage. (69) The facility proposes to construct one additional tank(350 ton) to store petroleum-products(Hazard Category B material). The material will be moved to via pipeline and the tanks is located approximately 500 feet from a residential receptor. The additional tank results in a 1%increase of Hazard Category B material existing on site. (63) • The facility proposes to construct one additional tank(100;000 barrel)-to store .. 'petroleum products(Hazard Category B material). The material will be moved 'to via pipeline and the tanks are located approximately 1 mile from a sensitive receptor. The additional tank results in a 1%increase of Hazard Category B material existing on site. (60). Revisions to the June 7, 1999 Initial Study: There are two discrepancies. First, the'transportation risk, 'I"was incorrectly assigned a value of I when in fact, it was a 1% increase in pipeline usage which ,7- corresponds to a `P'value of 0. The second inaccuracy was that size of project "A" was incorrectly assigned a value of 25 which corresponds-to 4000 tons to 6000 tons rather than'a value of 27 which corresponds to 10,000 tons to 18;000 torts. • The facility proposes to construct one additional tank(100,000 barrel capacity) to store gasoline (Hazard Category B)in the tank farm. This represents a 5% change in the facility storage capacity. -Materials will be moved to and from the tank by pipeline. The construction site is located 1 mile from a sensitive receptor. (63) 70=79 Delta Chemical Company proposes switching from hydrogen chloride(Hazard Category A) to hydrochloric acid(Hazard Category B) and increasing storage capacity from 1,000 gallons to 5,500 gallons. The new tank is 3000 feet from a residential receptor. There will be a 25%increase in truck transportation and a 25% increase in Hazard Category B storage. (76) Gasoco Refinery proposes adding,three methanol storage tanks. The refinery will provide methanol for it's own operations as well as supply a neighboring refinery. This results in increased storage capacity of a Hazard Category B material of 52,000 tons or 10%_ The tanks are located 3, 850 feet from a school Ate '. Initial Study,Ordinance 98-48 August 5, 1999 Page A-4 (sensitive receptor). The material will be transported by marine vessel into and out,of the facility resulting in increased traffic of 6%. (79)) Revisions to the June 7, 1999 Initial Study. NOTE. This project would require a land use permit under 98-48, regardless of score, because the development project is in excess of 40,000 tons of hazard category B material(Section 84-63.1002(d)). • ABC Farms uses anhydrous ammonia in.their vapor-compression refrigeration system. They use chlorine, sodium hydroxide, and nitric acid in a small waste water treatment plant. They propose to build two new wash water storage tanks of 5000 gallons each and will need to add more storage for the water treatment chemicals. They also propose to switch from chlorine(Hazard Category A material) to 4 tons of hypochlorite solution(Hazard Category B). The plant is located 8700 feet from a sensitive receptor. The change results in a 22% increase in transportation and a 10%increase in storage capacity. (79). Revisions to the June 7, 1999 Initial Study. NOTE. The provisions of Chapter 84-63 of Co. Ord. 98-48 apply to any non-agricultural zoning districts. • A refinery proposes to build ten new storage tanks (100,000 barrels each) and ten new.processing units. The.project involves a 20%increase in truck,traffic and a 15%increase in rail.traffic. The total increase in volume is 1.5 million barrels. The expansion will be built 2 miles from a residential receptor(73). .revisions to the June 7, 1999 Initial Study. The project would result in a 6%increase in storage capacity. NOTE: this project would require a land use permit, regardless of score, because it is a new process unit with hazard category B materials(84- 631002(c)) • The facility proposes to construct one additional tank (100,000 barrel capacity) to store gasoline (Hazard Category B) in the tank farm. This represents a 5% change in the facility storage capacity. Materials will be moved to and from the tank by pipeline. The construction site is located 1000 feet from a residential receptor. (70) ■ The facility proposes to construct two additional 30,000 gallon tanks (each approximately 400 tons) for 93.60A nitric acid. The nitric acid will be moved to and from the site via pipeline. The facility is located 100 feet from a residential receptor. This results in an 81% increase in storage of hazardous materials. (97) Revisions to the June 7, 1999 Initial Study. The hazard score has been changed from '79 to 97. Nitric acid at 93 6% is considered "fuming nitric acid however, this information is not provided in the DOT guide, which is the first avenue for "determining hazard category. The resider would have to review an MSDS to determine this information. ' ted fuming nitric acid"is considered a hazard category A material, while nitric acid below 86% is considered a hazard category B material. The score of 79 incorrectly assumes that 93.6°1 nitric acid is a hazard category B, which corresponds to an `7I"value of 3. The score of 97 assumes that 93.6% nitric acid is a hazard category A, which corresponds to an ".K"value'of 5. - Initial Study,Ordinance 98-48 August 5,1999 Page A-5 ■ Currently a facility stores 10,000 gallons of acetone and 10,000 gallons of toluene. Transportation to and from the site is by truck. The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The use of toluene will increase so it will be brought in by 20,000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 1.75 miles from a sensitive receptor(76). Revisions to the June 7, 1999 Initial Study. The.Percentage Change, 'P",'is 100%. "P"was originally assigned a value of 4 which actually corresponds to >1000Y.-200%. The correct value of■P" is actually 3 which corresponds to>50%40001o.. The score changes from 79 to 76. Currently a facility stores 10,000 gallons of acetone and 10,000 gallons of toluene. Transportation to and from the site is by truck. The proposed change in operation will continue to store 10000 gallons of acetone, but willdoutble the number of trucks supplying the acetone. The use of toluene will increase so it will be brought in by 20,000 gallon railcars at the rate of one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 1.25 miles from a residential receptor (73). Revisions to the June 7, 1999 Initial Study: The hazardscore changes from 76 to 73. The Percentage Change (P)is 100%. "P"was originally assigned a value of 4 which actually corresponds to >100%-200%. The correct value of`'P"is actually 3 which corresponds to>50%- 100%. 8U-89 • Gasoco Refinery proposes adding three methanol storage tanks. The refinery will provide methanol for it's own operations as well as supply a neighboring refinery. This results in increased storage capacity of a Hazard Category B material of 52,000 tons or 10%. The tanks are located 3, 400 feet from a school (sensitive receptor). The material will be transported by rail into and out of the facility resulting in increased traffic of 10%. (87) • ABC Farms uses anhydrous ammonia in their vapor-compression refrigeration ,system. They use chlorine, sodium hydroxide, and nitric acid in a small waste water treatment plant. They propose to build two new wash water storage tanks of 5000 gallons each and will need to add more storage for the water treatment chemicals. They also propose to switch from chlorine (Hazard Category A material) to 4 tons of hypochlorite solution(hazard Category B). The plant is located 2250 feet from a sensitive receptor. The change results in a 22% increase in transportation and a 10% increase in storage capacity. (83). Revisions to the June 7, 1999 Initial Study; NOTE: The provisions.of Chapter 84-63 of Co. Ord. 98-48 apply to any non-agricultural zoning districts. Also note that development projects in which both the size and monthly transportation quantity of hazard category B material are less than 5 tarns are exempt(84- 63.604). + A pool chemicals and toy supply business proposes to add a new line of carboys of bleach solution (total increase of 2000 pounds). This represents a 60% increase initial Study,Ordinance 98-48 August 5, 1999 Page A-6 in hazardous materials stored. Trucks will be delivering the bleach solutions once per month through industrial areas. The facility is 500 feet from a residential receptor. (85) • Currently a facility stores 10000 gallons of acetone and 10000 gallons of toluene. Transportation to and from the site is by truck.The proposed change in operation will continue to store 10000 gallons of acetone, but will double the number of trucks supplying the acetone. The we of toluene will'increase so it will be brought in by 20000 gallon railcars at the rate of.one railcar a week. A second storage tank of 20,000 gallons will be installed. The proposed tank site is located 2640 feet from an industrial receptor(62). Revisions to the June 7, 1999 Initial Study. The hazard score changed from 85 to 82. The Percentage Change (P)is 100%. "P"was originally assigned a value of 4 which actually corresponds to>100%-200%. The correct value of`P"is actually 8 which corresponds to>50%- 100%. fi Initial Study,Ordinance 9848 August 5, 1999 Page 37 Attachment B: Comment Leers Deceived by County from "Interested Parties" (follows) • t 5753 Glen Mawr Avenue El Cerrito,CA 94534 h: 8 .May 14, 1999 DEPT Debbie Sanderson Community Development Department 551 fine Street,41 Floor Martinez, CA 94553-0095 Dear Ms. Sanderson: I have the following comment on the"Stipulated Judgment"on the Industrial Safety Ordinance (ISO). I believe that there have been environmental impacts by not adopting language pertinent to item T(a)of the judgment.This has been illustrated by the problems the Board of Supervisors has had addressing the two most recent releases,the 1999 Tosco and Chevron refinery fires. The inadequacy of the current ISO has been amply demonstrated by the inability of the County to halt all operations at the Tosco plant until the incident investigation was complete enough to prove whether a threat to the public existed,and by its inability to require Tosco to commit itself to a schedule to implement the Arthur D. Little recommendations before starting back up. Fortunately,Tosco voluntarily agreed to both of those steps,but what would have happened if Tosco had fought them?The impotence of the ISO within the city limits of Richmond was graphically illustrated by the Chevron fire. As I stated in the process ofadopting the ISO,the County must be empowered"to require facilities to implement technical,managerial and/or other improvements at industrial facilities to promote public health and/or safety." I recommend that the ISO be amended to empower the Board of Supervisors to shut down any facility covered by the Ordinance immediately,before the incident investigation has been completed,in order to assure the health and/or safety of the public,and to set conditions for the facility to restart. I also recommend that the County work closely with the cities within the county, such as Richmond and Pittsburg,to amend the ISO so it applies equally to all equivalent facilities in the County, whether or not they fall within city limits. Sincerely, Step en Linsley, Member Hazardous Materials Commission + h I?el P.O.Box 711 99 MAY 24 PM 12: 04 Martinez,California 94553-0071 01 Wvkwt orEqAw m.rynae,u c Telepho"e: {925)313-3000 .,T May 19, 1999 Dennis Barry Director Contra Costa County Community Development Department . 651 Pine Street,4th Floor,North Wing Martinez,CA 94553 Re: CBE Stipulated Judgement Dear Mr.Barry: Both in the County letter to"Interested Parties" dated April 19, 1999,and at the County sponsored meeting on the above topic held on April 28, 1999,written comments were solicited regarding the environmental impacts of the adoption of the Industrial Safety Ordinance("ISO")and the potential implementation of the CBE Stipulated Judgement. This letter provides the comments of the Martinez Refining Company("MRC"). MFC does not believe that either the adoption of the ISO or the adoption of the four options identified in Item 7 of the Stipulated Judgement("CBE Options")caused or will cause any potential adverse environmental impacts. The land use portion of the ISO is essentially the same as the provisions of the former Ordinance 96-20 which is the baseline for evaluating environmental impacts. The only substantive differenc6 between the land use portion of Ordinance 96-20 and the ISO is the addition of a provision requiring land use permits for certain projects regardless of project score based on the volume of hazardous material to be handled. See Section 84-63-1002(b),(c),(d). This provision can only have a beneficial environmental impact. The second portion of the ISO imposes new requirements above and beyond Ordinance 96-20. These new requirements expand the application of the Federal and State RMP program to otherwise exempt processes,require the performance of root cause analysis for major accidental releases,and add enhanced auditing and inspection of stationary sources. These provisions also should only have a beneficial environmental impact. While the CBE Options do have potential adverse consequences,they do not appear to be adverse environmental impacts for the purposes of an Initial Study. MRC reserves the right to submit comments on the non-environmental impacts of the CBE Options at a later date as part of the County's process for the implementation of the CBE Stipulated Judgement. Sincerely, dog 7,aw Chuck Flagg Refinery Manager r CALIFORNIA CONTRACTORS ALLIANCE P.Q.Box 601,Benicia,CA 94510 Voice Mail(707)746-5594 7 PH May 17, 1999 ASPEN TIMCO,INC. Mr. Dennis Barry BENRIA FABRICAIm&MACHm INC. Director CCC-Development Department 651 Pine Street,North Wing COREY DELTA CONSTRUCTaRs Martinez, CA 94553 `'r +JEI€CO PAINTING&COATING,INC. Dom`Mr. Barry: In the Contra Costa County's(County) role as lead agency under a stipulated NOVA GROUP,INC. judgment to perform an environmental review of the Industrial Safety Ordinance(Ordinance 9949),you requested in a letter dated April 19, 1999 PETROCHEM INSULATION,INC, (see attached)that"comments*regarding"potential environmental impacts either (1) due to the adoption of the Industrial Safety Ordinance(ISO)or(2)due to the possible adoption of any of the four options identified in Item 7 of the PLANT MAINTENANCE,INC. stipulated agreement(see attached)," be submitted not later than May 24, T 1999. In accordance with your request, please find below the comments of the SoNNIISON&STOROAHL California Contractors Alliance. CONSTRUCTION It is the position of the California Contractors Alliance that the County's environmental analysis of the ISO must focus exclusively on safety, both for `"" the workers and for the communities in which industrial facilities exist. The environmental analysis should not be allowed to stray from the original TOTAL WESTERN,INC. elements contained in the ordinance or as required to be analyzed in the stipulated judgment. To do so would be to undermine the intent of the T ordinance or to open it up to special interests seeking to achieve objectives UNDERGROUND CONSTRUCTION unrelated to industrial safety.-Further,the analysis should avoid incorporating COMPANY,INC. issues unrelated to hazard assessment, such as worker training and T certification. It was the stated intent of the Contra Costa County Board of UCI CONSTRUCTION.INC. Supervisors in adopting the ISO that the issue of worker testing and certification, if required, should be dealt with in a separate venue through a process independent of the ISO. To that specific issue, CCA is not opposed to worker testing and certification, provided that it be objective, non- exclusionary, administered by an independent third-party, and affords all employees, regardless of affiliation, equal opportunity, Turning to the specifics of the stipulated judgment, Item 7 requires that the County's environmental review process shall, at a minimum, analyze the following mitigation measures and/or alternatives to ISO: ir CALIEORMA CONTRACTORS ALLIANCE P.O.Box 801,Benicia,CA 94510 Voice Mail 0071748-5594 Asm Timm INC. (a) amending the ISO to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial T facilities to promote public health and/or safety; 13mm FAMO M M&MACiaNE,INC. (b) establishing a technical,assistance grant program with funding T of$100,000 per year that will be available to community organizations to hire Conry DELTA CONSTIWC RS technical experts to assist with analyses of the safety plans submitted by industrial facilities; T (c) revising the thresholds contained in Section'84-63.1004 of the JEFM PAINMIM&COATING,INC. ISO for determining when new development projects are subject to ,r environmental review to 60 and 70 hazard points. Nava Gnour,mc. Item 8 of the stipulated judgment p ,l gment requires that the County shall conduct the '► review of the mitigation measures,and/or alternatives,outlined in paragraph 7 Po"Wim iNSWAMW,INC. (above)to the ISO through an inclusive review process involving all interested parties, including the Petitioner(i.e., Communities for a Better Environment)in this action. PLANT M"MmAMM,INC. Without dwelling on Communities for Better Environment(CBE)essentially SONNIKSON&STaeoara duplicating industry's successful challenge of its predecessor ordinance,the so- CaNs"Umm called "good Neighbor Ordinance(GNO)," it is somewhat ironic to note that T those items to be evaluated in Item 7 are essentially an attempt by CBE to infuse back into the ISO elements that were found to be unrelated and, in fact, TiEe contrary to industrial safety. Our comments regarding the specific elements in ♦ Item 7 are as follows: TOTAL WESTERN.INC. .,rI Item 7(a)-Allowing the County to-require industrial facilities to implement improvements to promote public health and/or safety, places the C UNOER INC. cnaN County in jeopardy of mandating improvements which, if ineffective or AmY, NC. counterproductive, raises serious questions regarding County liability. 'r Furthermore, numerous federal and state agencies, as well as professional UCI CaasTnuCrON,INC. organizations have, through their legislated authority or long-standing expertise, developed regulations and standards of practice that an expansion of the ISO might undermine, even to the leveltiof negatively impacting the health and safety of the workers and the communities surrounding_ industrial facilities. The CCA.opposes such an amendment to the ISO. Item 7 (b) -Establishing a technical assistance grant program at a level of $100,900 per year that would be available to hire technical experts to assist with analyses of industrial safety plans is nothing short of using public moneys to fund a private organization. Recently, cornu' nities in the unincorporated r - CALIFORNIA CONTRACTORS ALLIANCE P.O.Box 601,Benicia, CA 94510 Voice Mail(707)746-5594 Asm TIMce,INC. areas of the County have strongly criticized the litigious and self-serving actions of CBE. It is the expectation that governmental agencies, charged to protect the health and.safety, should'fulfiff that obligation and be responsible to BENIaA FABRICATION&MAMINE,INC. the communities in which industrial facilities are located. Further, it is the right T and obligation of those truly community-based organizations to advocate for and represent the interests of their communities, not some special interest COREY DELTA C®dsrRucTGRs organization located elsewhere. The CCA opposes such an amendment to the ISO. JEF CO PAINTING&COATING,INC. T Item 7 (c) -Revising the thresholds contained in Section 54-63.1004 of the ISO to 60 and 70 hazard points is contrary to the intent of the ordinance, IVovA GROUP,INC. which was designed to encourage industries to reduce quantities of hazardous v materials and.establish buffer zones. The Contra Costa County Hazardous PEMOCHEM INSULATION,INC. Matenals Commission and numerous organizations, including those a representing industrial workers, argued successfully that the intent of the point V : score in the land-use component of the ISO was to promote reductions in PLANT MAINTENANCE,INC. hazards in order to avoid the land-use entitlement process. To lower the score ♦ would be to do.exactly the opposite, i.e., to provide no advantage for reducing SONNI'KSON'&STOROAHL potential hazards. The CCA opposes such an amendment to the ISO. CONSTRUCTION Item 8 mandates that, through an inclusive review process involving all interested parties, the County shall conduct its review of the mitigation TIMEC measures and/or alternatives outlined in Item 7. CCA formally requests its IV inclusion in all aspects of the environmental review and any subsequent TOTAL WESTERN,INC. processes, including but not limited to receiving announcements, agendas, minutes and documents, participating in all informal and formal discussions and proceedings leading up to and including the rendering of any decisions by the UNDERGROUND CONSTRUCTION Contra Costa Planning Commission,Hazardous Materials Commission,Board COMPANY,INC. of Supervisors or any other body that may deliberate on this issue, should any V of the measures in Item 7 be incorporated into the ISO. The CCA's UCI CONSTRUCTION,INC. membership includes many of the premier contractors performing a majority of the routine maintenance and turnaround services for the County's industrial facilities, making them vested stakeholders. To achieve the goal of an industrial safety ordinance that does not place the county at jeopardy, that does not bow to special interests and maintains an incentive to reduce industrial hazards, the environmental review, and subsequent deliberations and decision-malting, must focus exclusively on the i CALIFORNIA CONTRACTORS ALLIANCE P.O.Box 601,Benicia,CA 94510 Voice Mail(707)746-5594 Asprm Thoco,INC. issue of industrial safety. We are committed to working toward this objective and participating.in that process. V Be*=FAOIncmw&NWMNE,INC. Sincerely yours, Coag OELTa CONSTRUCTORS ♦ Brent Babow Jwco pAUmNc&coanNe,INc. vice President ♦ Copies To: Contra Costa County Board of Supervisors NOvA GROUP,INC. Clerk of the Board of Supervisors T Debbie Sanderson,.Contra Costa County Community PETROCHEM INSIRATION,INC. Development Department PLANT MAINTENANCE,INC. SONNIKSON&STOROAHL CONSTRUCTION Time ToTAL•WE&TERN,INC. V UNDERGROUND CONSTRUCTION COMPANY,INC. V UCI CONSTRUCTION,INC. Y .j Tosco Refining Company A DlvWon of Tosco Corporation PSan Francdsco Area Refinery ` at Avon Ir MarfitY9z,California 94553-14$7 Telephone:(51o)228-1$20 "Fosca 99 HAY 20 Pit 1: 05 May 19, 1999 Ms. Debbie Sanderson Contra Costa County Community Development Department County Administration Building 651 Pine St.,2 Floor,North Wing Martinez,CA 94553 DELIVERED BY HAND Re; CEQA Review of Industrial Safety Ordinance and four options listed in Contra Costa County/CBE settlement Dear Ms. Sanderson: The .Tosco Refining Company wishes to submit written comments 'on the California Environmental Quality Act (CEQA) Review of Ordinance 98-48, the Industrial Safety Ordinance(ISO), and the possible adoption of any of the four options identified in Item 7 of the stipulated agreement between CBE and Contra Costa County. Ordinance 98-48 has no adverse environmental impacts and offers environmental benefits beyond any of the previous County Ordinances 96-50,96-20 or 86-100. Ordinance 98-48 is more stringent in its land use permitting requirements and it addresses industrial safety, which had not been previously addressed by any ordinance. Ordinance 9848 was adopted under the County's authority to protect public health and safety by prevention of accidental releases of hazardous materials and to assure protection of the environment. . Ordinance 98-48 establishes and expands safety measures for industrial processes beyond that required by state and federal law,it creates requirements for use of rigorous methods of investigating accidents and it creates the first human-factors program in-the nation. Furthermore, this ordinance is locally enforced, allowing for greater regulatory oversight than previously existed. There are no negative environmental impacts in adopting Ordinance 98-48. CB&Contra Costa County stipulated agreement Item 7(a) "amending the ISO to allow the County to require facilities to implement technical, managerial andlor other improvements at industrial facilities to promote public health andlor safety. Item 7(a) in the stipulated agreement between CBE and Contra Costa County will have a negative environmental impact if Ordinance 98-48 is amended to include this language. Ordinance 98-48, as currently written, grants the County the authority to require changes in the safety program at an industrial facility. Section 450-8.014 (n) of Ordinance 98-48 defines the Safety Program as follows: "Safety .Program" means the documentation, developments implementation, and integration of management systems by the Stationary ,Source to comply with the safety requirements set forth in Section 450-8.016 of this chapter. Section 450-8.018 (H)(1) of Ordinance 98-48 grants the Health Services Director, or any of his authorized deputies, the authority to require changes to the safety program implemented at a facility. It states as follows: Based upon the Department's audits, safety inspection, or an incident inspection, the Department may require modyrcations or additions to the Safety Plan submitted by the Stationary Source or Safety Program to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter. Furthermore, if. the Department's decision is appealed; .:the .Board of: .. Supervisors has the same authority as the Department in requiring changes at a facility's safety program. Section 450-8.018 (H)(2) states: In acting ,. on the appeal, the Board shall have the same authority over the Notice of Findings as the Department; The Board may regUire modifications or additions to the�Safety`Plan submitted by the Stationary Source or Safety Program *to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter. Ordinance 98-48, as currently written, already provides the County the authority to require changes at a facility to promote public health or safety. However, Ordinance 98- 48 was carefully written to limit decision-making discretion to industrial safety measures contained within the ordinance. This was done purposefully to allow the County to require safety-based measures,yet avoid triggering CEQA. If CEQA was triggered each time the County required safety measures at a facility,the implementation of these safety measures would be significantly delayed by the CEQA process. This delay could have negative environmental impacts and serve.to decrease public health and safety. CBEIContra Costa County stipulated agreement Item 7(b) "establishing a technical assistance grant program with funding of.$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety plans submitted by industrial facilities." Item 7(b) in the stipulated agreement between CBE and Contra Costa County offers no beneficial environmental impact if Ordinance 98-48 is amended to include this language. The County already has a Health Services Department, which regulates public health and safety and can act as a technical resource to the public. Health Services also employs an Ombudsman to assist the public with issues involving hazardous materials, such as the issues covered. in Ordinance 9848. Finally, the County also has a Community 2 Development Department, which serves as the environmental steward by assuring that specific development projects go the CEQA process and that environmental issues are addressed. CBEIContra Costa County stipulated agreement Item 7(c) "revising the thresholds contained within Section 84-63.1004 of the ISO for determining when new development projects are subject to environmental [sic] review to 60 and 70 hazard points." *Itis assumed for purposes of this discussion that Item 7(c) contains a typographical error and was intended to reference Section 84-63.1002 rather than 84-63.1004. Ordinance 96-20 was the original ordinance containing the mathematical formula to determine land use permitting scores for industrial development projects. The threshold score for land use permits was set at 80 points by the Hazardous Materials Commission, which held more than three years of public meetings and hearings to develop the ordinance and that threshold score. The Commission scored many real and hypothetical industrial development projects to determine the 80 score. Ordinance 98-48 contains the same mathematical formula and threshold score. as Ordinance 96-20. However,98-48 contains additional language (Section 84-63.1002(b)- (d))that requires large development projects to obtain a land use permit regardless of the score of those projects. This language was added in response to the concerns raised during public hearings for Ordinance 96-20 that certain large proj ects would not score as high as 80 and therefore not be required to obtain a land use permit. The language contained within Ordinance 98-48 states as follows: 84-63.1002 Hazard Score, Permit Required., Unless otherwise exempt from the requirements of this chapter, a land use permit shalt be required for a development project proposed for the management of hazardous material and/or hazardous waste if any of the following apply. (a)the development project obtains a hazard score of 80 or more pursuant to the formula set forth in section 84-63.1004;or (b) for hazard category A materials, the development project stores twice the quantity specie as the Threshold Planning Quantity on the Extremely Hazardous Materials List (Appendix A of 40 CFR Chapter 1, Subchapter I Part 355), as amended from time to time, or 2000 pounds, whichever is less;or (c) for hazard category A or B materials, the development project will result in a new process unit(s) unless the process unit complies with Section 84-63.1004(d) 1-6 — Credit for reductions or projects to be closed. Modifications to an existing process unit does not constitute a new process unit; or 3 (d) for hazard category B materials, any development project that has a fill to the maximum capacity. of 40,000 tons or more . unless the .. development project complies with Section 84-63.1004 (d) 1-6 -- Credit for reductions or projects to be closed. The.additional language in 84-53.1002 serves to catch large development projects that score below 80 points without capturing smaller business projects scoring below 80 points. We submit that the County should allow sufficient time to pass in order to determine the effects of this language on land use permitting, before making before any more changes to this section. In'conclusion, the Tosco Refining Company supports Ordinance 98•-48 as currently written and believes the ordinance should be given time to determine its effectiveness. The changes proposed by the CBE/Contra Costa County stipulated agreement offer negative environmental impacts or no environmental benefits and should not be incorporated into Ordinance 98-48. Sincerely, Mario. Batter, Mans r,Health and Safety 4 � t 3398 Wren Avenue r7o Concords CA 94519 June 25, 1999 99 JUS Z8 , a Debbie Sanderson, Community Development Department Contra Costa County 651 Pine Street,North Wing Martinez, CA 94553 Re: Initial Study on Ordinance 98-48 and Options Dear.leis. Sanderson, I am writing to disagree with the Community Development Department's proposal of a Negative Declaration for two of the Options under the Stipulated Agreement. I believe that adoption of Option 7a and/or Option 7c could have significant negative environmental effects on the County. Option 7a The CDD analysis of possible effects under Option 7a discusses the possibility that HSI) staff` might require a facility to make changes which would have a negative environmental effect, but notes that a facility could disagree and appeal the decision to the Board of Supervisors. CDD concludes that the Board could then make the environmentally desirable decision. In fact, the final decision would be made by elected officials who do not have expertise in the specialized field involved, retying on their personal determination of which expert group(HSD staff or facility personnel)was correct. The possibility certainly exists that the final decision by the Board might in fact be incorrect and have negative impacts. The CDD analysis also assumes that the facility would actually appeal the HSD requirement if it might have negative impacts. In fact, the facility might be unwilling to extend the process of approving the plan, or fear political and community reaction to an appeal, and thus the HSD decision might stand. The CDD analysis does not consider the possibility that the staff`might not require a change, and that some other party which desires the change could then appeal the decision to the Board, although this is certainly allowed under the Option, and was in fact the rationale when this amendment was proposed during the initial adoption of 98-48. In this case, the Board would again be choosing between groups of experts, with the probable additional component of emotional community pressure. Again, the possibility exists that the Board might make an decision with the potential for environmental problems in the future. Based on these three scenarios, I cannot agree with the Negative Declaration proposed for this Option. Sanderson, CDD -2- 6125199 Option 7c The CDD analysis of Option 7c concludes that lowering the threshold for hazard scores would have a beneficial effect, if any, by including facilities in the environmental review process that otherwise would avoid the review by modifying their proposals. Since the modifications could be included in conditions for a permit which would be required under the environmental review, the result would.be similar, according to CDD. If a facility decided not to ask for a permit because of the need to do an environmental review, the result is also presumed to be beneficial (i.e., no project, no additional risk). However, removing the incentives for risk-reduction from the hazard assessment process could in fact have a real impact on which projects would be proposed'in the county in the future. As someone who has been involved in each of the successive versions of industrial land use permit ordinances leading to 98-48, I am very aware of the need for an ordinance which will 'accommodate modernizations and upgrades to existing facilities. In many cases these modernizations may result in less risk to the community, but this is not the primary reason for such improvements. Lowering the threshold may result in corporate decisions to postpone or eliminate planned improvements to a facility because the environmental review process makes them less cost-effective or otherwise desirable. While lowering the threshold.to 70 rather than 60 might have less effect on this scenario, it would raise the possibility that the county might continue to tinker with the threshold'level. This could still introduce an element of uncertainty for corporate planners which nught have the same chilling effect on,future facility improvements. While postponing or eliminating such projects will have only a neutral effect on the community initially, since risk is not immediately increased, the result will be a facility which is not up-to-date, -and one where management and employees may become less concerned with operating safely. t;orporate leadership, especially iftiased in another state;may"write•off the ficility in future corporate plans, and become uninterested in running it in a responsible, risk-free manner. In fact, all the elements cited in the recent Tosco audit could be present, with the potential for significant environmental impact in the case of accidents or releases. Therefore, t am not comfortable with the Negative Declaration proposed for Option 7c. I believe that further environmental review is necessary for both Option 7a and Option 7c. Sincerely,,.•. ... . . . . . . . . ,. • ., ... .. ... .,. . .. . . . Leslie Stewart -OR, A 7.°July 1999 ,d r : • . ETTER Debbie Sanderson "99JUS " P11 "2'4 Q Comunity Dl) evelo went epartirrient "; ,_,�,:.,�: .�:I1�iVII,t�NM NT' m . • 651 Pine Street,4th Floor ' lvlsrtinei;•CA"94553-0095 Re::.N606sed,hTegative'Declaration•for the'Industrial:Safety Qrdiriance DeafMs. n•. y, ` .. Corhmiinitie�for a getter Environihentl.("CSE)strongly urges•theCOnty.ofC0ritra:Costa.. O'Couoty')•to'pi,pare an eraviro ental impad -pt�A,CE1I�')6i. he Industrial a�fety, Ordinance: `IS4. Th Initial:St zl Evaluad6n i f t ie I dustri�il`S` e (Srtliriali , `` •. y• n ce.errorieously' roacluded`tliattie:iSQ,wouldhave:no•trioironmen -impact.''Tfie:Cciurity"w ll:vicil te.tli�. Califoinia vi cintiicii#a1'Quality:Dict'("CWAy;"),-�P� b:.Resoiirces Ct}de section�l�Q of seq{;'anii . CE( A's implen�entipg Gujdi i ne_s�tgQA.Guidelii6j,'Title'l4 of the'C41.ifomis`Coile cif. I�egrila qns.Section 1 S(?;0 et s if the Coin dries not repare•art befog r • . . .E • erns` eqp, tY. P piu' .< - `,�,dex .rlg anti readopting thea" ce,'..An EtR is ieequire i ifs the rdinance:niay have'a--aigriificant ' . .• adve�e.�nviriinineittal'iairipact. " � . ' .. ' . ' ' ` `,••• ' • . . .. ,. . Aiz'EI muSY be prepared vherievex stibstanttaT eviller qe-supports"a`fair.argi rdr. t - t, p tO?o may have a significant adverse iriipact`on{the envirc rtnient. See Iaatirel Hei�6Impr6vgpent- Ass'ti'y. tents of the Univ.of.Cala Cal:4tfk:1112; 1123,26 IUt Rpik r2d'2�1:(1993 significant environmental'6p.4ct ex1sts-when.there is.a,substantial or" substantial idverse change to the environment;•See�Pf ih.-R.es.'Cade•§21068,14`.Cali'"Kegs.§•153 82: A substantisil••adversech nge to`the.envirbninent e5di if there is.a ieasonablt:probability that the proposal'wyill result`lit a significant mpactii -Sete 140, Oil`Icic.V. t itv.of Lcis'Arigeles, 13 Cal. . - . . . 3rd 68;.83;fn.,'16;.1 L Cap::Rpti.`34•{19 4). .'There are`fair re asorls• vhy the}roprisecl 00i.1mce may Have significant adverse environnientsl. hripattts iequicirig tlie'preparation i�f an SIR A:np'oneafthese impacts justifies:prcparaiion Tian A. First,the IS(} raisesJhe`rink threshold far eavironinel taIieVi4;i, f r.requiring land uuse,V&r Ati for:riejv:projidts.ox`a ;rtifcarit`Yttadificatiotis froDi 60 points #0 80.0oints, which t ay have.asignifcaatAdverse edvirotivaenfal impact.". .'The ISQ'revis .'&thre$liolds for.determ`n'iing Add new developtmertt projects.are subject to•l- envtronmental.rev1ew from 6.0.points to anin egsed threshold-of 80 poinfs: While additional conditions were added in ail attemptto'prevent increased risk,the possibility. still exists:for new development projects with increased risk•to"escape review and cause a negative environmental ` impact -For ex le", additional l ngtiagbiddiesses_drily very specific.ca es where a Iiroject'' 'CBE' is a non-prottt.•environniental organization wiih•siatowide'membeiship nerd,6ffices in'San`l~rancisco,Los Angeles and Huntington Pa&: C$E is commi#teti to suppcirting commrinities.in an ei'fort#o,improve the:• enyir-onmint and p�blic lrcalth.in urban areas.`;CBE,which'has 20,000 membrers statowid ,'hundreits of wiroin dive; in'Con: 3 County;wroeiced tb'pass,the Good Neighbor t7rdinnni�.,in Contrs•Casta G`oupty. 5fl toward Sore Suite 5b.6,� fan: 'ra'ricistro;:CA`941.0v`';'(4 5} " 4 '=$87 ' T»..'r►iitftoi n.(171ifnr*r%iri F�O.r'W.'t7lvin»ir�31vd.:S'ui $5� •Los Zi=f .GSA$ti0'� 7 July 119 4 v, Y CBE Comment latter okP.ioposed•-Negative Deblaration ry, Page 2 of 3 'scoring 80 points will require rev e' such as projects with.new units containing certain chemicals'or increases in chemical usage. A negative environmental impart may occur from project's that;do•not meet these narrow criteria but-still increase risk. , V. There is)substantial.evidence that supports a,,fair argument that raisirig`theythreshpldt'or erlvirofimegtat review inay have a'sigtuficant averse impact ori'the e7vironm6nt' With 1 ; d safe r uixemen the tential for'plant•blow-tips:or•accidents indteases-gr6ggy. r .ty tsf 1 This creates a.great potential of allowing'�m'ects w!thrncrVased th `t of-n*tive-:•. ' enviror'Rental impact to-&i oi+-,public scrutiny and environmental review prior to permitting, t "directly re's_ulting in&,significant adxerse environmental_impact The.very purpose bfthe ISO, :arid similar ci lineined, is to iiaddress the issue.of lno4strial accidents. 1.. i�� r t it - Mdreov�r,Mf: lvtare`Scott;an i4de iident.expeirt hW 1 y,,. ' t"ou�nty;id titike04 number of . a• negative impicts of the ISO s ring system;,tnciilding•the pcisslbility that moxtAahgerous �• t. ,`• .•� t �� t pro�ec cariget iov�rer scores Mess dangerous projedts can,get hcigier'scores. {lep�i'tto the' Cprn ,Costa'1County Board of Su rvisois,.Review'of P�o�p'sed'Indusfri*l;Safe'ty 'Ord%tiince•'t R . Contra Co Court 19-21,attached as Exhibit',A.). .Additionahl ;.Mr. Scott.ideng es.xhat-'the scoring system floes pot take the-aobility..of chemicals,into consideration._There4fot'e;low mtibilit chertiicals ares penalized while high moliilitr:materials are 1perkel upon lerijiently. For certsuitases that have vo %o low-limits for toxic exposure;releases may have ttie im ritlal for serious health impacts beyond:the 3 miles shown,in the Hat d Score.tal�lcs: Aga serious may. ' ir�sult in'a's`rgrdfic int'adverw environmental impact$ecaQs ofthe'�tential for harm to the enviroatnent when'a release occurs. Thui,there,is substantial evidence supporting a ffair. , argumegthat the proposal may:have a significant adverse impact on the environii eat requiring that an EIR be completed before passing.the ISO. B. Ezperts disagree whether-proposed itmenclments to the ISO will have�'Uegative impact on.the environment: This disagreement requires the�'County to prepare an :`The c*ty dust conduct a n'environmentat impacet review because expeas.disagree as.to whether proposed aiinendments could result in negative environmental impacts. Comgtents have been submitted to the County which argue that the impacts of amending the ISO could create.. negative edvirotiinental impacts.through.the'delayy of permits and other,actions. 'Tl a County and others believe t4at-the lower thi'trshold would not dia've an actual or potential significant�advdrse ; environmental impact. Whenever there is a disagwment among exerts over the significance of an`effect,the effect must be treated as significant'and ari EIR must be prepared.. S, ' Sierra Club v.Count a Sonoma, 6 Cal�'App.4th 13011-J317,,1 22-23 {1992}. 'I`herefore,$Here is substantial evidence that supports'a fair argument'that the'proposal may have-a-significant adverse•itnpact on the environment. As such,an SIR must be conducted. 71 uly 1999, ' 013E Comment Letter on Proposed Negative DedarAtion Paige 3 of 3 C. The existing ISO does not give power"to the county to•"increase or change safety measures not initiated by the industry resulting in compromised regulatory.. authority,whicli 7may have a significant adverse environmental,impact. . Pursuant to the Stipulated Judgement in Communities for a Better Environment'v. 'County of , Contra Costa—Civil Na. C99-00094;tht'Caurity must consider wheth9r'it leas the au�tl arity to :require installatipmof certain safety measures'("Ameriddr ent 7(a)"). `The.existing ISO does not gyve paWer to the county to increase or i"nge safety measures not.initi�tel by t4e:in4ustry.'; g Thereis adispute over the necessity of such authority. On.the one ilmd, it is argued that the 1. County must have,t4us authority-to erisure the•protection of the people,'livirig in;the county;and the enviroy, the County the protection of does riot hziveaari nment: Without thts authoi t 'apportunityito ensure that the needs'of the environment are met.: All the power is left;in the' hands of the.iridustry vvham,'in order to out cast,may avoid iinplementing-coift!.though necessary,safety.equipment~ On-tbe other hand;`it'has.bepn gguedthat�the Arnendme It 7ta) -could have a negative,iTpact'if the permit process del'yea safety irriprav mems use of additional time necessary for e4vironmental'review;. e existing arntsi�tiity'algine is substantial evil eirice that.$up arts a fair argurndtitlhat the proposal may have a sigru ficant'adverse impact b the env'rranriment. The only way tri ensure that these concerns are addressed is for the County to prepare art PIR, 'Section VII'of.the Initial Study,dealing with sigri'ificant hazards to the public or the exivironmertt from the transpor=t,.use.ai disposal of ha 'rdous'.materials;:cannot be concluded` .tohave no envicomm� ntal impact. r y Tri§VII of the Initial Study,which addresses the impact of transparting,'using,or disposing of hazardous,materials,the County concluded that the ISO would cause no,environmental impact. .However,%§VII(c);which addresses the existence of hazardous materials near existing.or . proposed sclCools;will be violated-because there are plants located'/.mile from schools. If there is•a toxic release to the air, soil, or water it xnay effect an existing school. '"l hus,there is \ substantial evidence that supports a fair argument of significant enmronmental impact. The county cannot conclusively claim that the ISO will have no impact on schools within'/mile of ' industrialfacilities lj cause,the degree to which the ordinance subjects industrial facilities to . environimeirtal review may have asignificant,adverse environmental impact. Therefor,the only. way to continue in a'tawfui manner is to--conduct an Elp, a For all of the above reasons, CBE respectfully requests'that,the County reject the Initial•Study's proposed negative declaration. Further,.CBE strongly urges the County to proceed and conduct an EIR to see what the true environmental,impact will-be. Please contact'Beatrice Wong at'(415) 243-8373 ext 202 with any questions'dr concern§. Respectfully submitted, tD�rmyyLarson. orthern California Program rrector Beatrice`W ong, Staff Attorney a J. l ijin'Cha, L,e,�gal Intern r Tosco Fteiining C Mpzaay ' 11 A Division of Tosco Corporation San Frannisco Area Ftefln" ( at Avon Ir Martinez,California 94553.1487 Telephone:(Sft}}228-t22o 11��� Yosco July 7, 1999 Ms,Debbie Sanderson Community Development Department,North Wing4h Floor County Administration Building . 651 Pine St.. Martinez,CA 94553 DELIVERED BY BAND Re: Initial Study and preliminary determination of a Negative Declaration for the Industrial Safety Ordinance and four options listed in Contra Costa County/CBE settlement Dear Nis.Sanderson: The Tosco Refining Company hereby submits written comments on the Initial Study for the Industrial Safety'Ordinance(Ordinance 9848)-and the possible adoption of any of the four options identified in Item 7 of the stipulated agreement between CBE and Contra Costa County. Tosco supports the conclusion of the preliminary determination in the Initial Study that a Negative Declaration is required under CEQA'for Ordinance 98-48. As stated in our previous letter, there are no adverse environmental impacts associated with adoption of Ordinance 98-48 as it is currently written. Several State and Federal regulations address industrial safety in the same manner as Ordinance 98-48, by allowing regulatory agencies to require managerial changes in safety programs at facilities(29 CFR§ 1910,CCR Title 8 Chapter 51.89,40 CFR§ 68,CCP'.Title 19 Chapter 4.5). These regulations have been in place for many years with no observable adverse impacts to the environment. However, with respect to the stipulated agreement Item 7(a), Tosco submits that a negative declaration, is not appropriate. Item 7(a) refers to "amending the ISO} to allow the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety." The Initial Study interprets "technical improvements"to refer to improvements to the physical system and"managerial improvements" to refer to improvements to programs and procedures. Evidence exists that requiring technical improvements of this sort may cause significant adverse environmental impacts. For example, in 1994, the EPA adopted an Ethylene oxide emission regulation,40 CFR Part 63 Subpart 0. By July 1997,there was evidence that the emission control equipment required by this regulation may have been responsible for four industrial explosions. One explosion, in Indiana,killed one person and injured 69 others. The Director of EPA's Office of Air Quality Planning and Standards issued two letters to the EPA expressing safety concerns with the implementation of Subpart 0. The EPA suspended compliance with Subpart 0 for one year, while accident investigations determined the role of the regulation in these accidents. Presently,three investigations are complete and the fourth investigation is pending. i The preliminary investigation findings suggest that two of the three mandated types of Ethylene oxide control equipment were involved in the explosions and that the cause of the accidents was related to difficulties in operating the required control equipment in conjunction with certain processes. In the near future, the EPA and the National Institute for Occupational Safety and Hazard(NIOSH) will be issuing an alert regarding the difficult nature of operating these t3W of control equipment in conjunction with sterilization processes Graig Matthiesspn, EPA investigator, conversation on 716199). The Ethylene oxide regulation clearly demonstrates that requiring specific types of technical modifications to ongoing industrial processes may have unintended consequences that can be extremely detrimental to the environment as well as human health and safety. Similarly, we believe that the sort of"technical irnprovements"required under Item 7(a) could have significant adverse environmental consequences that cannot be adequately addressed in a Negative Declaration. Our previous letter sets forth continents on CBEIContra Costa County stipulated agreement Item 7(b)("establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety puns submitted by industrial facilities") that need not be repeated here. With respect to CBEIContra Costa County.-'stipulated agreement Item 7(c) (levising1he thresholds contained within Section 84-63.1004 of the ISO for determining when new development projects are subject to environmental [sic] review to 60 and 70 hazard points"), we continue to maintain that the 'County should allow sufficient time to pass in order to determine the effects of the new land use permitting language in Ordinance 9848 before making before any more changes to this section. In conclusion, the Tosco Refining Companysupports a Negative Declaration for Ordinance 98-48 as currently written and believes the ordinance should be given time to determine its effectiveness. Item 7(a), proposed by the CBE/Cotitra Costa County stipulated agreement, offers potentially adverse environmental impacts and should be not be subject to a Negative Declaration. Sincerely, Mar�osi' Hatter, Mena r,Health and Safety Attachments: 7118/97 Letter from John Seitz,Director,OAQPS 7129197 Letter from John Seitz,Director,OAQPS •40 CFR Part 63 Subpart O 1214197 Action by Carol Browner,Administrator, EPA (Attachments to this letter available upon request from the Community Development Department) 2 M Attachment D: Staff Report, County Planning Commission, October 2G, 1999 n Agenda Item #-,I, Community ,- Community Development Contra Cestan County CONTRA COSTA COUNTY PLANNING'CbMMISSION TUESDAY, OCTOBER 26. 1999-=7:00 P.M. I. INTRODUCTION: On April 8, 1999, Contra Costa County and C6mimunities fora:Better Environment entered into a Stipulated Judgment to resolve litigation over the adoption,of the Industrial Safety Ordinance (Ordinance 98-48). In compliance with this Stipulated Judgment, the County Planning Commission will consider three items for recommendation to the Board of Supervisors. First, it will consider certification of a'Negative Declaration, prepared according t6`the California Environmental {duality Act, on the existing Ordinance 9848 and ciri four 'a mi to it. Second, the Commission will.consider the re-adoption.of C)rdinance 98- 48. Third, the Commission willconsider th'— doptiaiz of Rfour amendments to.tho Indii�#rlal'Safety:Z)rdiiti -64,(C}ii�inria#icc 98 ), as specified in Items 7(a), (b) and (c) of Clic Stipulated Judgment. These amendments would (1) allow the Health Services Department to require additional safety changes in indutstrrial facilities, (2)'would,provide $100,000 in grants for community review of industrial Safety Plans, and (3) would lower the hazard score threshold triggering the-requirement of a land use permit for certain industrial facilities. II. RECOMMENDATIONS A. Accept public testimony on.the Notice of Inieint to'A.dopt a Negative I7eclaratioi `for this project and ori the recommendations that the Board of Supervisors re-adopt Ordinance 98•-48 and decline to adopt the Stipulated Judgment Item 7 options as amendments to Ordinance 98AS. B. Adopt a motion recommending that the Board of Supervisors (1) certify the Negative Declaration for this projept, (2)re-adopt Ordinance 98-48, and (3) decline to adopt the Stipulated Judgment Item 7(a), (b) and (c) as amendments to Ordinance 98- 48. C. Request staff to prepare a resolution that documents the Commission's recomm6ndations and findings. III. BACKGROUND: Recommendations presented above represent the conclusion of the Community Development Department's implementation of the provisions of the Stipulated.Judgment entered.into.by.Contra Costa County and Communities for a Better Environment to settle litigation concerning the adoption of Ordinance 98-48, the Industrial Safety Ordinance. Recommendations adgpted by the County Planning Commission will be conveyed to the Board of Supervisors for final action, as specified by this Stipulated Judgment. This staff report summarizes.the following topics, as.listed below: A. Regulatory background,. B. Requirement s.of,the Stipulated Judgment, C. 'County actions to comply with the Stipulated Judgment D. Comments from Interested Parties E. Results of the required environmental analysis F. Recommendations to the Board of Supervisors concerning re- adoption of Ordina4.48-m?d, ejtem:7,amendments to the . hidustizalSafetyl7rdi�iance.(Orclinance G. Summary Recommendations With the exception of the last items (F)&~(G), each of these topics is discussed in more dated,in.the Initial Study and proposed:Negative Declaration for this project(Atta.chment A). ... Also, attachments to this report include the following documents: Attachment A. Initial Study and Proposed Negative Declaration Attachment B: Notices.of Public Review and:Intent to Adopt a Proposed Negative Declaration. Attachment C: Stipulated.Judgment, Civil-Np., C99-00094 -A#fachident D.` Industrial`Safety Ordinance., (Ordinance 98-48) Attachment E: Additional Comment Letters (Received since August S, 1999) A. Regulatory History: Chapter'84-63 of the Contra Costa County Ordinance Code was first enacted in 1986 through adoption of Contra Costa County Ordinance 86-104, This Ordinance required certain.facilities involcririg hazardous waste and/or hazardous materials to obtain a land use permit prior to construction of the facility or modification. Chapter 84-63 was amended, with minor changes, again in 1990 and 1991. In June 1996, the County adopted Ordinance 96-20, which amended Chapter 84-63 by introducing a.system based on S-2 •r hazard-scoring for determining which proposed projects must obtain a land use permit. In December 1996, the County adopted Ordinance 96-50 (commonly referred to as the "Good Neighbor Ordinance"), which further amended Chapter.84-63. On December 15, 1998, the County adopted Ordinance 98-48 (commonly referred to as the `Industrial Safety Ordinance'"), which repealed Ordinance 96-50, amended Chapter 840, and added Chapter 450-8. In adopting these Ordinances, the County,had determined that its actions were exempt from the California Environmental Quality Act (CEQA)., relying on the Class 8 Categorical Exemption. On December. l6, 1998,.the.State District Court of Appeal Court overturned the lower,court, clearly stating that the County cannot use this exemption for adoption of amendments to Chapter 84-63. B. Requirements of the Stipulated Judgment: On April 8, 1999, Contra Crista County.and Communities for a .r.$ettor Environment(CBE)settled a lawsuit over the adoption of tl e.IridustrialS.,ety Ordinance (Orditiance598-4s). The settlement took the form of a"Stipulated Judgment" in which the County agreed to conduct an environmental reviewbf this ordinance, in accordance with the California Environmental Quality Act (CEQA),with the,ordinance.remaining in effect pending completion of the environmental review.. [Stipulated Judgment, Communities for a Better Environment v. County of Contra Costa, et aL, Civil No. C99-00094. A copy of this document is included.as.Attachment(r..)., Items 4 through 8 of this Stipulated Judgment obligate the County to do the following,as summanzed: ` Itern�4: Prepare an initial study within 60 clays of this Judgment ((hy.June•7, 1999). .•Item 5: ,Commence.the appropriate enviroanmental analysis within ani addifi nal..sing;d�ys+(�Y..Ugust 6, 1999). Item. 6:. Complete the.e'nvironmental reviewprocess within twelve to fifteen months of the Judgmer t (by.April 8 to July 8, 2000). Item 7: Evaluate the Industrial Safety Ordinance as well as the four options described in the Stipulated Judgment (a) Allow.the County to mandate improvements at a facility; (b) PrOvide$100 000 in cbmmunity,grants to review Safety Puns; .. M.,sower.the hazard.pc6re threshold by 10 points (from 80 to ' 0) or by 20 poi:iilsi (from'80 to 60) for requiring land S-3 use permits,.and similarly for requiring Determinations of Inion-Coverage. Item 8: Conduct the review of these specified options through aan,inclusive review process involving all interested Item 3.- 'board of"Sup,elMsciirs`*shail vote on-whether to adopt each of the . . . alternatives outlined inn paragraph 7 .[Items 71 within 12 months from entry judgment." (by April 8, 2000). In addition, the County Board of Supervisors has instructed the Comm unity_Development Department(hereafter, the Department) to conduct ttiiareview in cooperation with the City'of Richmond and the County's Hazardous Materials Division of the Health. Services Department (hereafter, Health Services Department). C. County Actions to Comply with this Stipulated Judgment T'heirectpir 'merits ofthc Stipulate�l;.l�td��nterit fa11 into the following three.categories:`'Th 'C6 i.�ty 1-as compIRd'with these requirements as summa'rized'below:' 1. 'Environmental.Analysis (CBQA) (Items 4, S, b, and7); 2.. Interested.Parties review process,(Item 8), and `3: Considering amendments to Ordinance 98, 48 (Reins 7 and 9). 1. Environmental Analysts (CEQA) (Items 4, S, 6, and7) mms 4&7: Preyam Iit LbtW Study by June 7 1999• Item 4 requires the County to "prepare an initial study re aurdix g the adoption of the ISO**thin sixty(60) days from.,entry ofjudgment" Ite= 7 requires the'analysis to 'evaluate,the adiipoion,of the Iiicltis#rial.Safety Ordinance as well as the four aptitiris listed in Item 7."The judgment was entered on April 8, 1.999,`inky the deadline for completing the initial study.Tune'7, 1999. Actions to Comvly: On June,7, 1999, the Department completed preparation of an,W al Study covering the required items and'submitted it to Communities for a Better Environment. That initial study included a :P 'fin4 ?8 that the Delrartcnent would recommend adoption of`a Neg4tive Declaration on the adoption of Ordinance 98-48 as well as on the adoption of the four options identified in Item 7 of the Stipulated Judgment. S-4 • Item 5. Commence Appropriate Environmental Analvsis within another 60 days: - This Item of the Stipulated Judgment requires the County to initiate "appropriate environmental analysis" by August 6, 1999. Actions to Comply To meet this requirement, on August 5, 1999, the Department (1) revised.the June 7, 1999 Initial Study, addressing comments by interested parties, and (2) issued a Notice of Intent to adopt a Negative Declaration on this project. Since the.D.epartment has recommended adoption of a Negative Declaration, no further analysis is necessaxy at this time. Item 6: Complete the Environmental Review Process within 12 months: If the Department had.determined that an Environmental Impact Reports.was.required, then the Stipulated-Judgment allowed 12 (15 with an extension) months, or to July 8, 2000, to complete the analysis. Actions to Comply: Unless directed by the Board of Supervisors to prepare an environmental impact report, the Department has completed the environmental analysis of this project and recommended adoption of a Negative Declaration.. 2. Involving Interested Parties (Item 8) This Item requires the County to engage in an inclusive review process, involving all of the interested parties in the environmental review and the formation of recommendations. ~ Actions to Comply: To meet.this requirement, the County and the City of Richmond did the following. Created an extensive mailing list of about 250 `Interested Parties.' List includes Communities for a Better Environment, others'Who have shown interest in this ordinance, the Richmond Neighborhood Councils, City of Richmond elected and appointed officials, the ;..: M4m, c ipal-A.dvisoxy.Coup, ils,.and {through an S-5 . ffidependent'party) the Community Advisory Panels for industrial facilities within both the City and the County. • Sent four notices to interested parties, informing them of the Department's plans, documents released, open discussion meetings, and opportunities for public comment: #1: April. 19--22,:1999 02- June.10,::1999' #3: .' August 9; 1999 #4: September 29, 1999 • Invited written comments from the foregoing parties at four points during the development of the Initial Study, and notified them when each document was released: #1: April 19 through May 20, 1999 #2: June 7 through July 7, 1999 .##3: Augudt-9 through September 15, 1999 #4: Extended #3 to October-25, 1999 + Invited their participation in four open discussion meetings held on these dates: #1: -Apri1.28; 1999 #2: June 30, 1999 #3: August 26, 1999 #4: September 8, 1999 • Reviewed and considered comments from "Interested Parties" when preparing each document released: #1: ' June 7, 1999: Preliminary Initial Study. . . #2: August 6, 1999: Final Initial Study . . . #3: October 26, 1999: Staff Report with recommendations to:the County Planning. Commission.' Circulated comments from"Interested Parties" as attachments to both versions of the Initial Studies, making all comments readily available to all other parties Made Department staff available throughout the seven- month process for questions and guidance concerning actions to comply with the Stipulated Judgment S-6 • Made a special effort to involve Communities for a Better Environment. Mailed,all documents directly to them.; rescheduled the June 30th meeting so they could attend (which they did not attend); and kept them abreast of all schedule changes. • Published two notices for the County Planning ing Commission Meeting--a standard legal notice in late September in numerous papers; a 1/8 page advertisement.display on October 15th, in the Contra Costa Times.- 3. inges.-3. Consider Amendments to Ordinance 98-48 (Item 9) Item.9 of the stipulated judgment specifies that the County Board.,of Supervisors shall vote whether to adopt the four options described in Item 7(a),(b)and (c). Actions to Comply: This staff report evaluates these four options as possible amendments.to Ordinance 98-48, and recommends that the Board of Supervisors decline to adopt these options as amendments: . Through this staff report and County Planning Commission meeting, the County Planning Commission is being asked to consider this informati'on and any public comment received at this. meeting; and to make.a recommendation to the Board of Supervisors. The Hoard of Supervisors will consider these recommendations at a subsequent meeting. D. Comments from Interested Parties. The County received nine comment letters during the three comment periods. The comments are described and discussed below within the applicable subsection of this staff report Comments on the Initial Study and Proposed Negative Declaration .are also discussed in more detail within that document [See 'Attachment A,.pages:20-21, 24 25, and 28-29]. Comments on the Item 7(a), (b), or(c) are summarized below in Subsection F of this staff report- Comment eportComment Period #1 (April 19 through May 20, 1999): Letters received: The Department and the City of Richmond requested comments in their April-19th and 22nd letters to interested parties,acid rrx ived four comment letters as listed below. [These.letters are included in the Itxitiai Study, Attachment . '.A, and are discussed in detail in Initial Study, ) S-7 1. Mr. Stephen Linsley. member of the Hazardous Materials Commission, 5/17/99. 2. Mr. Chuck Flagg, Refinery Manager, Martinez Refining Company, 5/19/99. .3. Mr. Brent Babow, Vice President,,California. Contractors Alliance, 5/17/99. 4. Ms. Marjorie Hatter, Manager, Health & Safety, Tosco Refining Company, 5/19/99. Meeting Participation: At the meeting on April 28, 1999, the County described the basis for the CEQA analysis, the baseline conditions (i.e., Chapter 84-63 as amended by Ordinance 98-48), the type of public comments that would prove useful. Questions concerned the basis for analysis. Staff received no substantive comments at this meeting. Other than County and City of Richmond staff, ten individuals attended the meeting, representing Pace, Contra Costa Labor Council, Equilon (MRC), Tosco, Chevron, CBE, and the news media. 2: Comment-'Period,#2(June 7 through July 7, 1999) Letters Received: i w its'June. 10th letter to Interested Parties,,the Department requested comments on the .Preliminary Initial Study and Negative Declaration, and received the following three letfers. [These letters are included in the Initial Study, Attachment A] 5. Ms. Leslie Stewart, 6/25/99. 6. Mr. Denny Larson, Communities for a Better . Environment(CBE), 7/7/99. 7. Ms. Marjorie Hatter, Tosco Refining Company, '7/7/99. MeetirieyParti+cipation: At the June 30; 1999, County and City of Richmond staff met with six individuals representing Tosco, Equilon, PACE;.Local•8-5, and the CAPS. Staff answered•questions concerning the overcall process and schedule and discussed substantive issuep raised by participants. Staff had rescheduled this meeting to accommodate CBE's schedule but they did not attend. 3. Comment Period #3 (August 9 to September 16, 1999) Letters Received: .,9n August 9, 1999, the Department and the City-of Richmond notified interested parties of the Coua s intent to'adopt a Negative Declaration under CEQA for this project. The letter invited them to two open- discussion meetings (August 26th and September 8, 1999), and invited written comments by September 15, 1999. S-8 The Department received two comment letters: 8. Scott Folwarkow, Western States Petroleum Association, 9/14/99. 9. Marjorie Hatter, Tosco Refining Company, 9/14/99. Meeting Participation- Meeting#3, August 26, 1999: County and City staff met with,staff.from Tosco and Equilon. Meeting #4, September 8, 1999: County staff met with staff from Tosco and PACE. 4. Comment Period#3 Extension: (to October 25, 9999) On September 29, 1999,'the'Department notified Communities.for a Better Environment that the County Planning Commission hearing date had been postponed to October 26, 1999;and that the comment period had been extended to October 25. This letter was sent to all -iiiteresteil`parties.,'.As of the*v' icing of this staff revort;no additional comments have been received during this extension period. E Results of the Required Environmental Analysis 1. Project Definition: The Initial Study evaluated a"project" comprised of two major parts. The first part included those changes that would.occur by replacing Ordinance 9620 with Ordinance 98, 48. The second part included those changes that would occur by adopting each of the four options described in 'Item 7 of the Stipulated Judgment. [See Attachment A, Initial Study, pages 7 11, fora more detailed description of :the-Frojcct.] Part 1: Adopting Ordinance 98-48 would create a new Chapter 450-8 and would make two major changes in Chapter 84-63: i. A new'Chapter 450-8, Risk Management:this chapter would require certain major industrial facilities in the County (1) to implement Safety Pro `, (2) o prepare S 'ety Plans and to submit them for public and HSD review. This chapter would also allow the County Health Services Department to S_g audit these Safety Programs and to evaluate major chemical accidents and releases. ii. Changes to Chapter 84-53: These changes would (1) restrict application of the Ordinance to non- agricultural zoning districts, rather than all zoning districts;-and;.(2) include three new categories of development projects that would be required to obtain land use permits, independent of their hazard scores. Part 2: Four Captions identified in Items 7(a), (b) and (c) of the Stipulated Judgment: i. Items (a)-and (b)would amend Chapter 450-8, by expanding authority of the Health Services Department(Item 7a) and by providing$100,000 in community grants to evaluate Safety Plans (Item 7b). u: `".Item.7c would amend;Chapter 84-53 by lowering the hazard score.thresholds by either 10'points or 20 points (fromZ0 to 70,,or from 80. to 50 for requiring land use permits). The Stipulated Judgment has Dept Ordinance 98-48 in place while this analysis was.being..completed.Nonettheless, the analysis was undertaken as if Ordinance 98-48 had not yet been adopted. . 2. Comments on the.-Initial Study and.Proposed Negative Declaration: : Staff received sevencomment letters on the Initial Study and Proposed Negative Declaration. Staff received an eight letter on commenting on the:CEQA analysis [These comments are summarized,and.addressed under the subheading"Interested Parties" Comments and Responses" found on pages 20-21, 24-25, and 28-29 of the Initial Study, (Attachment A)-) • Staff received only one comment letter that questioned the,proposed adoption of the Negative Declaration, as it relates to:the re-adoption of the existing Ordinance 98- 4.8., . . The July.7, 19.99 letter from Communities for a Better Environment (CBE) commented that an EIR should be prepared prior to re-adopting the Industrial Safety Ordinance. [Pages 20 and 21 in the Initial Study, Attachment A, responds to this argument in more S-10 t detail.] CBE first argued that the Ordinance raised the hazard score threshold from b0 to 80, thereby reducing safety, thereby increasing the probability of explosions, and thus creating significant impacts. CBE provided no evidence to support this hypothesis. Second, CBE concluded that the current ISO-would create significant impacts because it failed to give the Health Services Department sufficient power to mandate improvements other than those recommended by a facility owner. ~Again, CBE provided no evidence supporting this theory. Third., CBE argued.that-Item VII.0 of the Initial Study Checklist incorrectly concluded no significant impacts since a facility with hazardous materials could be within V4 mile of a school, could have a release, and therefore it may effect a school. Staff Response: Staff disagreed with CBE that this scenario constituted substantial evidence. In sum, staff`concluded that CBE had not provided suubstantial evidence.that supported a fair argument that potentially significant impacts would result from the re-adoption,of Ordinance 98-48. tStaff received numerous comments opposed to the adoption of the Negative Declaration as it relates to adopting Options 7(a) (b)`or.(c) as amendments to Ordinance 98-48. Conccrniina alt of the options: CBE commented that the disagreement among experts concerning these four options required the preparation of an environmental impact report• Staff Response: Staff disagreed with this position; this process has revealed disagreements based on opinion and:h�pothesis,not evidence, and among individuals.without credentials in the field applicable to the possible occurrence of significant environmental impacts. -Staff concludes that.the disagreements thus far do not qualify as a disagreement among experts that would trigger the requirement.toprepare an environmental impact°report Concerning Option 1 jltem7fa)J, one commenter asserted that not adopting 7(a) would create significant impacts, citing as evidence the recent incidents at Tosco and Chevron. Four commenters concluded that adopting 7(a would create.significant impacts. Their reasons included increased liability, an undermining of other safety.regulations, delaying•projects because of land use permitting requirements that result in increased impacts, errors in required improvements resulting from appeals, and that mandated technical S-11 - - 4 improvements could create adverse impacts. Staff Resoonse: Staff`found that all of these arguments were :in theory and not.supported by substantial. evidence. However, staff`has considered these points when evaluating the possible adoption of Item 7(a); see Section F below. Concerning ORtion 2: [Item 7(bll, commenters opposed this option, but provided no theory or evidence that it might lead to,environmental impacts. Their comments are addressed later in Section F below. Concexnine Option 3`and 4; 7(cl, two commenters opined that lowering the-hazard score threshold would remove.the incentive for developers to reduce the inherent risk in proposed projects, and thus would lead to significant impacts. A third comment noted that frequent changes in the hazard.score threshold could create uncertainty among developers and make it difficult for them to plexi projects effectiYely.. .A fourth comment noted that the,current thresholds should be given more.time.prior to being adjusted. Staff Response: .None of the comments on,Option 7(c)provided substantial evidence supporting the comment submitted. As with the other comments above, these comments are addressed.later in Section F below. Staff has considered these comments on the potential impacts.f. . Adopting any of.these four amendments to the Industrial Safety Ordinance. Staff finds that none of these comments_provide substantial evidence of a potential significant impact,as required by CEQA [CEQA Guidelines, Section 150631 to direct preparation of an Environmental Impact Report. Nonetheless, staff did consider all of these comments when evaluating the Item.7.-options as amendments to Ordinance.98-48; see Section Fbelow. . 3. Potential impacts: Consistent with the CEQA guidelines and definitions, the Initial Study evaluated the possible changes that comprise the ''Project Description" and sought to 'identify potential ..,.significant impacts, i.e.., substantial or potentially substantial adverse changes in the physical environment that may be caused by the adoption of Ordinance 98-48. S-12 As discussed fully in the attached "initial Study and Proposed,Negative Declaration" (Attachment A, Initial Study . . . , pages 12 --291; the Department staff has evaluated the information available, consulted with the City of Richmond and the Health,Services Department, and considered the public comments received;throughout this process. Department staff has determined that there is no substantial evidence that any aspect of the project may .cause a significant effect on the environment. 4. Summary Conclusions: After.earefi#.and thorough•analysis,and consistent with CEQA Guidelines Section 21068 and Section 15063(a), County and City staff found no substantial evidence of potential signfficant impacts due to: a- the re-adoption of Chapter 45078, as presented in Ordinance 98-48, b. the re-adaption of the amendments to Chapter 84-63, as presented in Ordinance 9848, or c. the adoption of any of the four options presented in the Stipulated Judgment, items 7(a), (b), or (c). While staff analysis concludes that the environmental impacts from these items'appear'likely.to be beneficial, staff has not identified substantial.evidence that would support this,�conclusian. 5-13 As.presented in detail in the"tial Stu(ly, County staff found no substantial evidence that any aspect of the project Might cause a potential significant adverse impact to the physical environment..Thus staff determined that a Negative.Declaration.should be.prepeirtil. CEQA Guidelines, Section 1506*)(2),require the Depaitinent to prepare a negative declaration if there is no substantial evidence that the project, or any aspect of the project, may cause a significant effect on the environment. F.. Re-adoption of Ordinance 98-48 and Adoption of!terns 7(a), (b), and (c) Item 9 of the Stipulated Judgment requires that"the Board shall vote on whether to adopt each of the mitigation measures and/or alternatives outlined in paragraph 7 [Item 7], within twelve (12) .months from entry of Judgment' (which was April 7, 1999. These options are as follows. 7. Through the environmental review process, the County shall analyze, at a minimum the following mitigation measures and/or'altern itives to the ISO [Industrial Safety Ordinance]: (a) Amending the ISO to alliDW the County to require facilities to implement technical, managerial and/or other improvements at industrial facilities to promote public health and/or safety; (b) Establishing a technical assistance grant program with funding of$100,000 per year that will be available to community organizations to hire technical experts to assist with analysis of the safety,plans submitted by industrial facilities; (c) Revising the thresholds contained in Section 84-63.1007 of the ISO for determining when new development projects are subject to environmental review to 60 and 70 hazard points. The Department interprets item 7(c) to include two cases- reducing the hazard score threshold from 80 to 70 and from 80 to 60. Thus the County will evaluate these items as four potential amendments to the lodustrial. Safety Ordinance. Re-adopt Ordinance 98-48: The Department has completed the analysis required by the California Environmental {duality Act and, as summarized above, finds no potentially significant environmental impacts that might restrict the County's consideration of these options. [See Section S-14 i E above and Pages 12 --29 in 71w Initial Study . . . , Attachment A to this Stag Deport.] The Department and the Health Services Department have been implementing Ordinance 98-48 for almost a year. The Department requests that the County Planning Commission recommend that the Board of Supervisors re-adopt the Industrial Safety Ordinance (Ordinance 98-4$). The following analysis of these options reflects broad public policy considerations that are more encompassing thark the CEQA analysis, focusing ora.overall strengths and weaknesses of each option as an amendment,to the current,Industrial Safety Ordinance, Ordinance 98-4$.' Option 1: Allow the County to Mandate Improvements in Facilities (Item 7(a)) La. Description- Option 1 seeks to allow the.,CouW.(in.this case the Hazardous Materials Division of the Health Services " Department, hereafter referred to as the Health Services Department) to.require.a fatuity to,implement some change --either technical or managerial---in its facility operations in .9rdento promotc public health.and/or safety. Staff ;'. assumes that"terhnirsi.imparovemeants'° would comprise improvements to the physical system and that"managerial improvements" would comprise improvements to programs and procedures.. Suggested Text of the Amendment, To evaluate this option, staff has rep :Item 7(4) as a text amendment of Chapter 450-8, inserting the text below as a new paragraph.in Section..459,01$: Explanation for this Phrasing: This amendment would expand the basis far the I Health Services Department (and on appeal, the Board of Supervisors) to require safety improvements in a facility. Chapter 450-8 currently limits Both the Health.Services Department and the Board of Supervisors to modifications necessary"to bring the Safety Plan or Safety Program into compliance with the requirements of this chapter.' The amendment under consideration would expand the basis for,such required . :,"modifications-by allowing the`Health Services Department and the Board of Supervisors to also require improvements necessary'to promote public health.and/or safety." This amendment as drafted would frame the required improvement in the context of the Safety Plan or Safety Program. All of the procedures outlined in Section 450-8.018 which require written notice to the company involved and to the public would still stand and would apply to any mandated • im rovements,' These requirements would be implemented either through a Preliminary Determination (450-$:018(B)(1)), a Final betermination (450-8.018(C)),or a Notice of Findings (450- 8.018(H)(1)). .Thus, they would be subject to the same appeal provisions as currently provided in Chapter 450-8 for these three types of decisions. I.B. Synopsis of Public Comments Comment:..Qne comment in favor of the amendment referenced.the recent Chevron and"Tosco (Avon) incidents and concluded.that they were evidence that the Health Services Department had insufficient authority to protect public health and safety. Staff Response: While it is true t; r: iithbt' gr the'Health Services Department f;#ia e� eti t al.,th6 Moebihood of the two recent refinery ' incidents, itli"s.aot.obviis that such an increase in authority vvould..have:preveritcd these events entirely. Gaaient . PPosing'this amendment stated a variety of . . . "reasons: :. r :.Cciiritneint: I:IeIth.Services Department already has idielltAW.isriy ta,mandate safety improvements. . espouse: '•S1�aff `has`�ria comment an whether the Health Services Department authority is sufficient • Comment: ''Increases liability to the County. Staff Response: staff strongly concurs with the comments S-16 that adopting this amendment would increase liability, due in part to the lack of speck standards or guidance to the.Health Services Department in mandating improvements. ( aomm,ent: `May uE.ndexmine other regulatory agencies with mandates to improve safety. .Staff'Response: Staff disagrees with this comment in light of the level of expertise and regulatory,knowledge displayed by the Health Services I,7epartment staff,. • Comment: leads to possible errors by the Board in resolving appeals or by the Health Services Department ;vhen mandating improvements. Staff Emonse: The Board has long depended on the advice of the agency staff when resolving the many technical matters brought before the Board. The substantive matter brought before the Board covers a very broad spectrum.. Thus staff disagrees that having the Board resolve appeals on thesp.m#tters� is,,any,more problematic than other types cif Issues due to the Boards dependence on staff expertise. • Comments Increases opportunities to appeal a failure of the agency to,take action; with no.clear standards, appeals become difficult to resolve. Staff Response: Staff concurs that there will be more opportunities to appeal, .including an agency decision to take no action in r,spo rise to.a.community request. Staff also concurs that, in the absence of guidelines,it could be difficult to evaluate and resolve the.appeal.:.However, it does not follow that an increase in opportunities to appeal is necessarily bad. Potential Stre�Lgths The primacy benefit of this.amendment would be to provide the Health Services Department an opportunity to require safety improvements imaddition to those resulting from the Safety Program procedures described in Chapter 454-8. These.safety improvements would be in the context of the Chapter 450-8 Safety Plan audits and incident ..investigations. A second benefit would be the provision of 44ditional public review of the decisions being made by the H.yalth ser.cjc rs,Depar(;naent,through.the public review of safety plans. . . ,The Health Services Department is quite knowledgeable about the operations.and safety aspects of many of the facilities in the County that involve hazardous materials. S-17 With thisexpanded authority, the Health Services Departi hent could take action to require safety improvements, even if the improvement had not been generated by the analytic procedures required by Section 450-$.016. .Thus the.Health Services Department would be free to combine its knowledge of the work place and its various safety investigations to require improvements that may not have been readily apparent to others developing ,these recommendations. These improvements could take the form of technical changes, performance standards, additional reporting, or new management procedures. I.D. Potential Weakne": A primary weakness of this amendment is that it would create a potentisdly substantial liability exposure for the County, should it ever require a facility owner to implement an improvement against the owner's advice. The County could be held liable for future probleans at a facility, even if the:County mandates on1ymana erial.changes. This increased'exposure resorts because the responsibility for the safe management of the facility could become shared. Whereas now the facility,owner is entirely responsible; the adoption of thus amendment could share that responsibility between the facility owner and the County. A second weakness of this amendment is its lack of effective boundaries to guide the Health.Services Department in determining when'to take charge and mandate an improvement at a facility. The l:rrigtrage of the Stipulated Judgment itself is quite broad and provides very little guidaunce.• The suggested'teiti for this amendment deviates somewhat from the language of the Stipulated Judgment, in an effort to make this authority manageable. The suggested text for the amendment provides'tha opportunity for required improvements within the context of the Safety Plans and Safety Program pro16164 ures. However, the Health Services Department does not have an administrative precedent to follow in making these findings, and the amendment provides no other basis for guiding their a9tionsl-7%- `off exaumple, there is no language suggesting how the Health Services Departmentmight balance opportunities to promote public health and safety against economic or technical feasibility of the potential improvement. Without some b"alis for its decision-making, the actions by the Health Services Department may be subject to numerous appeals. Resolving these appeals without the benefit of some guidelines may prove difficult S-18 r' I.E. Recommendation After careful consideration of the public comments presented and the possible strengths and weaknesses of this option, staff recommends that the Board of Supervisors decline to adopt Option 1 as an amendment to Chapter 450-8, Option 2: Technical Assistance Grants This option would establish a technical assistance grant program with funding of$100,000 per year made available to community options to hire technical experts to assist with analysis of the Safety Plans submitted by industrial facility operators. 2.A. Description Staff assumes that this grant program would be an ;'.. amendmert,to.Chapter,450.-8.,applying to the public review of Safety Plans. Staff also assumes that the $100,000 in. grants would be distributed by the Board of Supervisors to established community,organizations. The Board might define"technical experts" as those experienced and knowledgeable in technical areas concerning hazardous materials and industrial safety, not'legal experts". The grants might also be restricted to hiring expertise, not to purchasing equipment (such as sampling equipment or computers),and to tasks that could be demonstrated to provide a basis for abetter understanding of a facility's . safety.plan. .. 2X. Synopsis of Public Comments Four comment letters opposed this amendment. Reasons given included.the following: • . Comment: The.current support from Health Services Department is sufficient. _Staff'Response: The issue is . :not whether the Health Services Department provides sufficient technical support, but rather whether that support is sufficient to..facs'litatc public involvement and understanding of the Safety Plans. The Ombudsman Program was intended to support community involvement. Comment: The funds would support private groups that the communities do not necessarily support. Staff' Response: In some County programs, the County collects fees,and.distributes some.portion of those fees to private groups,16 be used for a variety of purposes. 5-19 Thus, the fact that the groups may be private does not seem problematic. However, it may prove difficult to conclude what private organizations actually represent *the community*, since no community is homogeneous. Staff funds that-this issue is a serious consideration in adopting this option. Comment-mment- It is too much money for the tasks at hand., Staff Response: Staff concurs that the annual grant amount seems unreasonably high. 2.C. Strengths The primary benefits of this program would be to be to ensure that,community groups had direct access to technical experts in whom they had a high degree of comfort and confidence. For some community organizations, this benefit is highly sought. Such a grant program could provide community organizationsIheability to evaluate a facility's safety records:.witheicpert se that°is iebhniic4oy comparable to that of the HSD-and-the-facility owner itself. This expertise could help facilitate.c o munity itivolvement in the Safety Plan review process, and could help the community organizations focus their efforts in a more productive _Manner. ..2.D. Wa4knessess The primary weakness of this option is that the public health benefit is likely to be small, although the public participation benefit may be large. The analysis would be redundant to the efforts of the Health Services Department. The grant amount is available for a"specified task, which is reviewing the publicly available Safety Plans. Safety Plans are lay descriptions'of a much larger, more complex safety program; theise plans pxjobablp not change much from ' year.to year, so the incremental analysis in subsequent fears should be much less involved than in the first year. The$100,000 is equivalent to at least one full-time technical expert to evaluate a few Safety Plans. The . amount of resources seems to be large and out of proportion to the specified use of the funds. 2.Lr. . .Recommendation After careful consideration of the public comments presented and the possible strengths and weaknesses of this option, staff recommends that the Hoard of Supervisors decline to adopt Option 2. S-20 f ` Option 3 & 4» Lower Hazard Threshold from 80 to,80 or to 70, for requiring a Laud Use Permit. Option 3 and 4, if adopted, would become amendments to Chapter 84-63. 3/4.A. Description Chapter 84-63 includes a formula for calculating a%azard score' for proposed development projects that involve hazardous materials. Currently, if the hazard score is 80 or more, then a Land Use Permit is required. If the hazard score is between 70 and 79, then the applicant must request a`Determination of Non-coverage' to confirm that the hazard score is under 80. ..Item 7(c) of the Stipulated Judginrient proposes two options that would change these hazard threshold scores, The first, Yt 0 ti6n.3 would lower`ttie ha�arid§core thresholds by 10 points =- requiring a land use permit for projects with a score of 70 or more, And requiring a`Determination of Non- Coveragefor projects:"with a i6o a of 60 to 69. {option 4 would lower these hazard-score thresholds by another 10 points -�to 60 for requiring a lsiid use permit and 50 to 59 for requiring a*Determination of Non-coverage' If either of these options were adopted, then a series of :"c zari es 46duld"folldw. 'First,m6re types of projects would be subject to the land use permitting requirements of Chapter 84-63: Applicatits'thst expected to need only building permits would find that they needed.another size to twelve months to obtain.a land use permit prior to receiving any building permits. Developers may alter their projects, to the,6xterit"possible, to lower their hazard scores in an effort to.avoiA the lar&u' ;e p8hilitting requirements. Some developers are likely to succeed;leading to improved public safety through projects with less,inherent risk. Those projects that cannot be changed to fall under the h6zard score thrrehold would be subject to increased public scrutiariy through the­land use permitting process or 'through the evaluation of Petermlination Requests. Both of these review procedures often result in project ` improvements that benefit the publio health and safety. 5-21 ..................... 3/4.8. Synopsis of Public Comments: Staff received no comment letters supportingthis amendment and five comment letters opposing it • Comment: Several comments shared the view that the County has not yet had enough experience with the current,hazard score threshold$to come-to a valid conclusion whether the threshold should be lowered. Staff Response. Staff concurs with this comment, as discussed in more detail below in the subsection 3/4.13. • Comment; Similarly, several comments noted that there is no analysis supporting this change. Staff Response: Staff also concurs.with this comment, as discussed in more detallbelow in the subsection.3/4.D. Staff has identified no information providing guidance on the "cor-rect' location.of the hazard score threshold. Com$nent» Another: frequent comment is best summarized by the position of the Hazardous Materials Commission. This comment asserts,that, with a hazard score tbreshoU of 80; developers have an incentive to reduce risks to avoid the land use permitting requirerments.. The comment also asserts that most projects.could not reduce their hazard scores below 60 and remain viable. Thus, the commenters argue, reducing the hazard score threshold from 80 to 60 (or 70).would-remove-the incentive to reduce a project's risks, since the developer cannot lower the score enough to gain exemption from land.use permitting requirrements. , Staff Resoonae. Staff disagrees with this comment. First,avoiding land use permittingrequiremernt s is not the.only incentive,for reduciag:.thehazardous aspects of A liroposed..project,... 'The cost of insurance, employee lost time costs, and neighborhood support for example, are, among others, factors that create incentives to reduce a project's inherent risk. Second, products on.the market are,constantly changing, in response to customer . . ... demand. In the long.run, lowering the hazard score ;tbre hold.may increase market demand for less hazardous intermediate products and less-hazardous production process-.VlYii a the commenters'view may be true in the short run, history demonstrates that in the long run this outcome is not likely to occur. The analysis below expands on this topic. S-22 t C 3J4.C. Strengths The primary benefit of either of these two options would be an increase in public scrutiny of projects handling hazardous materials. The decreases,in hazard score thresholds-in either option-would require land use permits and/or`Requests for Determination of Non- coverage"�for more facilities, including smaller operations (such.as new gasoline storage tanks, small warehouses, and-smallprocessingplants): It is also possible that-lowering the hazard score thresholds for requiring a land use permit.would create an incentive for facility owners to make changes in the type or amount of hazardous materials used,in order to lower the project's hazard score. Over the past twenty years increased regulatory requirements and enforcement concerning hazardous materials has created an effective market demand for intermediate materials that are less hazardous. Several industrial sectors-.such as.paint and coatings manufacturing and chemical refining --now produce y products with much lower.=hazard..ratings:than they had 20 years ago. Service firms using these products-such as printers--now have work places that are significantly less hazardous than 20 years ago, due to the less toxic inks and ® dyes available to them. These changes occurred because of 'increased regulations and enforcement affecting the handling-of hazardous waste and hazardous materials. In the case of Contra Costa County, lowering the hazard :'score.thresholds may cause.short-run disruptions in the development.of industrial facilities; however, after a period of adjustment, the long-term benefits could be barge. 3,/4.D. Weaknesses A primary..weakness of each of these two options is that the staff has little analytic support for identifying a new threshold for the hazard score. While:staff presumes that a lower score would mean increased public scrutiny of development projects, staff has no analysis or evidence indicating what the correct threshold should be. Staff can only hypothesize,what the impacts would be for different types of facilities and how it would erect the requirement for land use:permits and.the.County'sAbility to condition those permits. The current hazard score threshold...(80) has been in effect for less than a year, and the Hazardous Materials 5-23 Commission invested an extraordinary amount of time trying to determine the "correct" hazard score threshold. No development project has yet been required to apply for a "land use-permit during the past year. Although the Community Development Department has received numerous Requests for Determination.of Non-Coverage, none of these projects"have been required to apply for a "land use permit, It is difficult at this bine to demonstrate sufficientexperience with the current thresholds to justify Changing them: Ever y time the County shifts this threshold, it takes the private sector several months to become aware of the change and adjust their business Planning efforts accordingly. 3/4.Z. ''Recommendation After careful consideration of the strengths and weakness of this option and-the public comments addressing it, staff recommends that the Board of Supervisors decline to adopt •either Option 3 or 4. H. Summary Recommendations:- 1. Negative Declaration and Re-adoption Ordinance 98-48s Staff has concluded this review of the existing Industrial Safety Ordinance and,of the four options being considered as amendments to that Ordinance. For the reasons specified in Section E above and in the attached Initial Shidy and Proposed Negative Declaration, the Department requests that the County Planning Commission recommend that the Board of Supetvisors (1) certify this analysis in compliance-with the California Environmental Quality,Act, and (2) re-adopt the Industrial Safety Ordinance, Ordinance 98-48. 2, •-Pkopoxted Amendments to Ordinance 98-48: . -Consistency with the General Plain As concerns the four amendments under consideration, staff has evaluated these:options for consistency with the County General Plan and finds no apparent conflicts. In pa ficulari-the Safety Element(Section 10) of the County 'C6neral Plan includes the following policy that applies to the consideration of these amendments Policy 10-fro. Industrial facilities shall be constructed and operated in accordance with up-to-date safety and environmental protection standards. S-24 :....................... :r;.: t F The Option 1 (Item 7(a)( amendment being considered would be consistent with this General Plan Policy, since it provides the Health Services Department additional opportunities to rewire safety improvements that reflect the most current knowledge in industrial safety. Option 2, 3, and 4 do not conflict with this Policy, although it is difficult based on our current knowledge of these amendments to assess how strongly they might support this policy. Recommendations Concerning the Industrial Safety Ordinance Amendments: After careful consideration and analysis, the Department requests the County Planning Commission to recommend that the Board of Directors decline to adopt any of the amendments, as described in the Stipulated Judgment in paragraph 7, Items (a), (b), or (c). S-25 r Attachment E; Staff Report, County Manning Commission, December 14, 1999 k Agenda Item # . , Community Development Contra,C9sta County CONTRA COSTA COUNTY PLANNING COMMISSION TUESDAY, DECEMBER. 14, 1999-7:00 P.M. I. INTRODUCTION: On,April;8, 1999, Contra Costa County and Communities,for a Better Environment'entered into a Stipulated Ju.dgrnent to resolve litigation over the adoption of the Industrial Safety Ordinance (Ordinance 98-48). In compliance with this Stipulated Judgment, the County Planning Commission will consider three items for recommendation to the Board of Supervisors. First,'it will consider certification of a Negative Declaration, prepared according to the California Environmental Quality Act, on the existing Ordinance 98-48 and ori'four.amendments to it. Second, the Commission,will consider the re-adoptiori of Ordinance 98- 48. Third, the Commission will consider the adoption of four amendments to the Industrial Safety Ordinance (Ordinance 988-48), as spec�.fied in Items 7(a), (bj an (d) of tli6 Stip4..q .. . .0 gin6tit.'.'These amendments would (1) allow the Health ServiceDepartriment to require additional safety changes in industrial facilities, (2)would provide $100,000 in grants for community review of industrial Safety Plans, and (3) would lower the hazard score threshold triggering the requirement of a land use permit for certain industrial facilitieit. (Continued from October 26, 1999) II. RECOMMENTATIONS A. Accept public testimony bri the Notice bf Intent to Adopt a Negative Declaration for this project and on the recommendation that the Board of Supervisors decline to adopt the Stipulated Judgxrlent Item 7 options as amendments to Ordinance 98-48. B. Adopt a motion recoendirig that the Board�f Supervisors 1. certify the Negative Declaration for this project, 2. re-adopt.Ordinance 98-48, 3. decline to adopt"the Items 7(a), (b) and (c), as presented in the Stipulated Judgment, as amendments to Ordinance 98-48, and 4. 'adopt minor modifications to'Chapter 450-8, as described below, clarifying information requirements and access to outside grants. C. Re quest staff,to prepare a resolution that.documents the do" m nission's recommendations and findings. M.BACKGROUND: ND: On October 26, 1999, the County Planning Commission opened the public hearing on various items prepared by County staff to comply with the Stipulated Judgement entered into by Contra Costa County and Communities for a Better Environment (CBE), concerning on Ordinance 98-48. The County Planning Commission continued the hearing to December 14, 1999 to allow County staff'time to consider comments by:CBE, to circulate their comments to the other "Interested Parties," and to try to reach consensus on possible amendments to Ordinance 98-48. On November 4, 1999, staff circulated a letter to "Interested.Parties" informing them of the outcome of the October 26, 199 County Planning Commission meeting and inviting them to a,meeting.on Wednesday, November 17th, to consider comments from CBE. Staff'attached a copy of CBE's suggested amendments and staff'responses to thein. On November 11, 1999, staff received.the attached letter from CBE, addressing questions,of.legal liability.. Qn.November. 17; 1999, fire individuals (other' iha County staff) met;.reviewed comments from CBE and discussed possible amendments that would respond to the concerns raised by CBE. The recommendations are the same as in the October-26, 19.9.9 staff report, with one change in recomme ndation II.B.4 to incorporate the modifications listed below. M DISCUSSION: A. Option 7tal: Expanded authority In the November 17th meeting of"Interested Parties", most of the discussion centered on Option 7(a),which would give,the County authority to mandate changes at an operating facility. Staff explained the increased liabilities to the should such iracreased.authority be granted io the County Department [Health Services Department]. Discussion then focused on opportunities to.clarify the.options available to..a"Stationary Source".[term used in Chapter.450-8.to describe facilities subject to that chapter] to claim that a recommended improvement was not"feasible" and therefore did not need to be implemented. Pursuant to the Interested Parties'request, staff agreed to draft proposed amendments to the Chapter 450-8 portion af.Ordinancg..9848 that (1) would clarify the definition of"feasible", and(2) would'require additional information from Stationary Sources to justify their claim that either an inherently safer system or a PHA recommendation were not"feasible." S-2 -------------------- . The definition of"feasible" [Section 4517-8.014(c)] is taken directly from CEQA. Staff turned to legal interpretations of the CEQA definition for guidance on how to improve the definition in Chapter 450-8. The Appellate Court decision on Citizens of Goleta Valley v. Board of Supervisors ("Goleta 1 ) (1988)provides the following clarification under CEQA: "[t]he fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the Additional costs'or lost profitability are sufficiently severe'as to render it impractical to proceed with the project." (197 Cal.App.3d 1167, 1181) Suggested amendxments'1 and 2 below incorporate this language, clarifying that a Stationary Source claiming that either an Inherently Safer System or a PHA recommendation is ''infeasible" requires submittal of sufficient documentation to justify this claim: CBE has recently staff submitted for consideration a copy of relevant language used in the Clean Water Program. Staff will continue to explore this suggestion, as well as others that might be received prior to the upcoming meeting. k B. Option 7(b] Technical Assistance Grants Discussion at the November 17, 1999 meeting concerning Option 7(b), Technical Assistance Grants, revealed that the County.probably could not assess fees on the affected Stationary Sources to cover the costs of these grants because the nexus study required by Government Code Section 6600 could not be demonstrated. Thus, these grants would have to be funded through general fund revenue or grants from outside organizations. In addition, the Department and the Ombudsman already have the authority to apply and receive outside grants, on behalf of the County, to support public information activities surrounding Safety Plans. However, there was general consensus among the Interested Parties that this'authority should be stated clearly.. Suggested amendment,3 below clarifies:the authority of the Ombudsperson to include use of outside grants and programs to provision of technical assistance to commu.nit7- groups, .' C.' Options 7(c) Lowered Hazard Score Thresholds There were no issues raised by those attending the .November 17, 1999 Interested.Parties meeting coricerning Option 1(c) to lower Hazard Score Thresholds fair requiring Land Use Permits ander. Chapter 84-63. Sw3 V. Recommendation: Suggested Amendments to Chapter 450-8. Staff presents the following three amendments for consideration by the County Planning Commission to clarify the concept and application of "feasible" in Chapter 450-8. 1. Add the following language to the, end of this paragraph, clarifying what information is required of a Stationary Source when presenting the. feasibility of Inherently Safer Systems. [Section 450-8.016- (D)(3)1: "This documentation shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this inherently safer system is impractical, and (2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the inherently safer system as impractical." 2. Insert the following language at the end of the first sentence of this paragraph, clarifying what information is required as concems`implementing process hazard:analysis recommendations (Section 450-8.,171.6 (D)(4)];, "Any documentation justifying a decision not to implement a .process hazard analysis recommended action shall include (1) sufficient evidence to demonstrate to the County's satisfaction that implementing this action is impractical, and (2) the reasons for this conclusion. A claim of"financial infeasibility" shall not be based solely on evidence of reduced profits or increased costs, but rather shall include evidence that the financial impacts would be sufficiently severe to render the improvement as impractical." 3. Substitute the following language for the last sentence.in Section 450-8.022, clarifying authority to receive outside funding for community technical assistance grants. "The.ombudsperson may retain appropriate technical-experts in order to fulfill technical assistance.requests from community groups. The cost of experts may be funded through programs established by the U.S. EPA or other appropriate entities." S-4 r ., til rACIO f 1 A :CBEf communities for a Better Environment October 19, 1999 Debbie Sanderson Community Development Dept. Contra Costa County 851 Pine Street Martinez, CA 94553 fax 925-335-1222 Dear Ms. Sanderson: Thank you for making some time available today, along with Dennis Barry and others to discuss the ISO amendments issue. I am forwarding to you basic language for tent additions/changes to the ISO that would clarify. CBE'sposition on improving the ordinance. A 1„THQRITY (3) (page 14) (add final sentences) "If the Department does not concur with �,. the conclusions for the Stationary Source's rejection of a Inherently Safer System, the Department shall find the Source out of compliance with the ordinance. If the Department determines that economic factors were the major factor in the Source's rejection of a safer system, while other factors of feasibility were satisfied, then the Department may require the Source to implement the safer system. if the Department does not require the Source to u4plement the safer system, the decision may be appealed to the Board of S4pervisors." u (4)(pages 14-15) (add sentences after the next to the last sentence) "If the • Department does not concur with the conclusions for the Stationary Source's rejection of a recommended action or the timing of its implementation, the Department shall find the Source out of compliance.with the ordinance. If the Department determines that economic factors were the major factor.in the Source"s rejection of a safer system,while other factors of feasibility were satisfied, then the Department may requite the Source to implement the recommended actions. If the Department does not agree with the schedule for implementing the actions, then the Department may require the Source to implement the actions on a different timetable. If the Department does not require the Source to implement the safer system, the decision may be appealed to the Board of Supervisors." (H) (page 18) (add sentences after the first sentence) "The Department may as a result of its audit, safety or incident inspection require the Source to VBE , 500 Howard , # 506 , S . f . , CA 9 .1105 AIIS� - 9d .14 ® RSk73 •. amaII .' i� hahiscitatMIn #• n r n COMM04-Itie 's for a 0ette Env1." o: -nment implement Inherently Safer Systems or recommended actions previously rejected by the Source or the Department in order to prevent or minimize future industrial accidents. The decision of•the Department to reject or require Inherently Safer Systems or recommended actions may be appealed to the Board of Supervisors." H IASSISTANCEGRANTS 453-8.022 Ombudsperson (page 1.9) (add final sentences) "The ombudsperson may retain appropriate technical experts in order fulfill technical assistance requests from community groups. The cost of experts shall be funded through appropriate county funding and/or funding through programs established by the US EPA or other appropriate entities." These are our initial thoughts; please feel free to contact me for additions or clarifications necessitated by the addition of this text to the ISO. Sincerely, Denny Larson N. Cal. Director CBE 0 Q t 500 Howard . # 506 S . f :. A 94105 ATMC11MENr B COMMUNITIES FUR.A '' November It, 1999. `� 99 NOV .EWER, VigVacsimile.and U.S Mait ® A� I. 22 Debbie Sandersbn r ErmRo NMNT. Community Development Department `. Contra Costa County. 851 Pine Street . Martinet,CA 94553 Fax: (925) 335-1222 Diana Silver, Esq. , Office c►fCounty Counsel County A(ltninistration 131ilding •65'1 Pine Street,9 h.Floor ; Martinez,CA 94553 Fax: (925 646-1078 Dear Ms..Sandetson and Ms. Silver: c'are:w Jting to Address.:tlre concerns raised,in the Contra Costa County Planning. ' Commission Staff Report�for October 26, 1999,and again in the Noveml5dr 4,1999 letter I from . Debra Sanderson to interested.'parties, regarding the adoption of proposed amendments to Ordinance 98-48, as described in 17 of the Stipulated Judgment for Communities fora fetter Environment v, .County of Contra Costa County, et al. —Civil No. C99-00094. We hope that this letter will facilitate an open and cooperative dialogue at'the November 17,1999 meeting. Jt is our understanding that County.staff.does not support adoption of the,proposed amendment described in 17(a) of thv Stipulated'Judgment, which provides the Health Services Department with authority.to require facilities to implement safety itoroverrients,-because it. would allegedly expose the County to"potentially substantial liability." Since the staffreport, and subsequent conversattons between our organizations,have not provided specific citations to the legal basis uport.which it is believed liability Arises,we hay,e'not, since eve cannot,'addressed those specific concerns directly. H©waver,based on a-ireview of the law,-we have concluded the.Cotinty(including the .-. . Board of Supervisors,and the staff jof the Planning Commission,Community Developrnent Department,and Health Services'Department)would be-protected from liability for injuries arising from the'required improvements under the Torts Claim Act,CA Govt. Code §810 et.seq. Govt.-Code§815 specificalty provides that"except as otherwise providedby statute;A public entity' is not liable for any injury, whether such injury arise out of an act or omission of the public entity or a public employee or any other person." Gov. Code §815.(a). When the Torts Claim.acct was.enacted, it was intended to"abolish all common law dr`judieially*deciared forms of liability to public entities,-except for such liability as inay be requited under the state or federal Constitution." Cochran v, Berzon Engraving Co. (1984) 155 Cal App. 3d 405,409. It is recognized that"the Torts Claim-Act was intended to make iMMmity the rule; liability is k A"public entity" includes the county and Any other political subdivision or public corporation . of the state. Govt. Code§811.2. 500 Howard Street, Suite 506 • .San Francisco, CA 94105 -.(415) 245-.8373 in Southern Ccclifarnia:605 W. Olympic Blvd.,Suite 050 • Los Angeles, CA..90015 • (213)486t5114 'imposed,only if provided'l�statute.," Thompson v. City of Lake Blsinore(1"993) 18 Ca1..App. ` 49,63 (emphasis in original)•(ettati6ns omitted): The proposed amendment to the Industrial Safety Ordinance("ISO") would,previde the Health Services.Departmeht with the authority and discretion to require safety improvements at facilities as part of the approval process for the Safety Plan or Safety*Program.' The County is " generally immune,for liability for discretionary.acts. Prov. Code§820.2. In addition,the County cannot be held,liable'for injuries caused by"the issuance;denial,.suspension;or revocatiort of,or 'by the.failure or,refusal to issue,.deny,suspend,or revoke any permit, license,certificate, attnroyal order or similar authorization where the public entity or an employee of the public entity is authorized by enactment`to-determine whether or`not such authorization should be issued,.denied,suspended or.re'voked," Gov. Code §818.4 (emphasis added),-In.other wor4s,the County"cannot be.held liable for any.injuries arising from the approval of a Safety:Plan or Safety, Program containing"required fnpraveinent." �also Locklin v. City of,I.t fa` ette{1994)7 Cal: 41',327,353.fn. `15`(public enOties'enjoy broad.statutory immunity,far injuries•resulting from approval-of developriment-ofprivate property),•Landgate, Inc. v. California Coastal Comrm1ssion (1998) 17 Cal. 0-'1066, 1021 fn.5,(government agency not-liable for injuries,resulting from as aborted condemnation proceeding that-delayed development.prof ect because the principle that a govemmeiht agencywill not be liable in damages for mistakes committed in.the development approvail prdr, ss,is rangcuent withGo'.C6de.§8199.') Moreover,a,public entity icannot beheld liable for the acts and omissions of its:employee 4i4t were'pdrfoimed within-the scope of employment unless the employee-herselfwouldhave been liable and not immune for such acts or omissions. Gov.Code§815.2. Ekeept as otherwise provided by statute,.a public employee is pot liable for any injury resulting•from his or her act or omission•%i heie the act or omission was the result of the exercise of discretion vested,in him or her,whether.-or not such discretion is abused..Gov.Code§824.2;Caldwell v. Montoyp(1995-) 10 . Cal.4''972,98.4(discretionary immunity applies:to protect,against commoi i-taw as well as ` statutory causes of action based on prohibitory state statutes of general"application:)•A_public ' eniployee is-immune for the issuance,.denial,suspepsion,revocation of. r-the failure or refusal to issue,deny suspend,or.revoke any permit,license,certificate,approval order or sutular , auth&i atiori by the employee as authorized by.enactment. 06v. Code §8211, Therefom even if health Service Department staff mistakenly require the implementation of certain safety improvements as Bart of a Safety Plan oar"Safety Piogram,neither the employee-nor•the County • on#issions because such actions would be disctetii naiy`and - cari be held liable for those acts or `made pursuant to discretion vested in him or her by the ISO amendment. " we hope this clarifies the liability issue.`"If,the•Courny has citations`for,its position,we would again request-thai those be pirovided in the spirit of good faith, 'Please feel free to-contact either of us if..Ybu have questions regarding this letter, otherwise;we look forward to,speaking with you further on November 17a'. . gincerely, . -Denny Larson, N. Cal.-Director rice Wong, Staff Attorney ATTACHMENT C 1996 [Ninth] Edition ui a to the California Environmental Quality' Act ( EA.) Michael TinaA.�Thomas h# James G. Moose �. Whitman F. Manley +t r' _• Soiano Press Books Point Arena, California App.3d 467,473 [137 Cal.Rptr.3041;Native SumEyon analysis,no meaningful conclusions regarding the fea- Communities v. City of Escondido(4th Dist. 1993) 15 sibility of the alternative could have been reached." Cal.AppAth 892,910[19 Cal.Rptr.2d 344];McKinney (197 Cal.App.3d at 1180-1181 [243 Cal.Rptr. 3391 v. Board of Trustees(1982)31 Cal.3d 79,88[181 Cal. (emphasis added).)The Court of Appeal added that Rptr,549]; Cormier v County of San Luis Obispo(2d "[t]he fact that an alternative may be more expen- Dist. 1984) 161 Cal.App.3d 850,855 [207 Cal.Rptr. sive or less profitable is not sufficient to show that 880].) Under CEQA, however, the distinction be- the alternative is financially infeasible. What is tween these kinds of agency decisions means little as required is evidence that the additional costs or lost regards the requirement for,findings 4S The Discus- profitability are sufficiently severe as to render it Aon following Gtiidelines.sectidn'.15091 explains that impractical to proceed with the project." "[a]lthough the courts have often drawn the distinc- (197 Cal.App.3d at 1181 [243 Cal.Rptr.339](empha- tian,betweon,quasi-adjudicatory findings which sis added);see also Kings County Farm Bureau v. must be supported by stilistantiat evidence and City of Hanford(5th Dist. 1990) 221 Cal.App.3d quasi-legislative findings which need not be sup- 692,736[270 Cal.Rptr.650].) ..ported by substantial evidence,the Legislature has In a subsequent case closely related to Goleta 1. blurred:this distinction by requiring all agencies to the California Supreme Court, emphasizing CEQA's make the[] Endings [required by CEQA Guidelines, § 150911 in response to specific facts in the EIR focus on potentially`feasible"alternatives,concluded: without regard to whether the decision could be "Surely whether a.property is owned or can reason- classified as legislative or adjudicatory. In requiring ably be acquired by the project proponent has a this finding, the Legislature appears to have re- strong bearing on the likelihood of a project's ulti- moved the partition between the two pigeon holes mate cost and the chances for an expeditious and and required agencies to grapple with the facts as successful accomplishment."' -presented in the EIR." (Citizens of Goleta Valley v. Board of Supervisors (Discussion following CEQA Guidelines,§ 15091.) ("Goleta 11")(1990)52 Cal.3d 553,574[276 Cal. Findings need not be perfect. 1f they contain some Rptr. 4101;see also CEQA Guidelines, §§ 15126, subd. (d)(5)(A)(discusses`"feasibility"in the con- examine the EIR or other administrative documents to ambiguity or are unclear on some point, a court may text of formulating alternatives for inclusion in an EIR), 15364(defines"feasible").) resolve the confusion or to seek clarification on a point. (No Oil, Inc. v City of Los Angeles("No Oil Another leading case indicates that fairly general 11") (2d Dist. 1987) 196 Cal.App.3d 223, 239-242 references to the economic and fiscal shortcomings of •[242 Cal.Rptn 371,citing City of Poway v. City of San project alternatives may suffice to satisfy findings re- Diego(4th Dist. 1984) 155 Cal.App.3d 1037, 1046 quirements. In Foundation for San Francisco's Ancrhi- (202 Cal.Rptr. 366].) tectural Heritage v City and County of San Francisco Although a finding of infeasibility must be sup- (1st Dist. 1980) 106 Cal.App.3d 893, 913-914 [165 ported only by"substantial evidence," such evidence Cal.Rptr.4011.the Court of Appeal upheld findings generally must be specific and concrete. In Citizens of adopted in connection with a proposal to demolish an Goleta Valley v Board of Supervisors("Goleta 1")(2d existing architecturally notable building and replace it Dist. 1988) 197 Cal.App.3d 1167, 1180-1183[243 Cal. with a new structure.The respondent agency's findings Rptr. 339], which involved a proposed coastal hotel, relied on both economic and fiscal information, as the Court refused to accept assertions that a particular well other matters: alternative was economically infeasible simply be- "[T]he record contains ample substantial evidence cause it would be more expensive or less profitable to to support the Board's conclusion as to the problems the applicant."In the absence of comparative data and presented by the rehabilitation alternatives.The EIR indicated that each of the alternatives considered as 71w distinction is significant,however,as regards agencies' `Would have increased construction costs from 1.5 duty to issue adequate notice to persons affected by agency million dollars to over 4 million dollars.The fact decisions.(See section vttt(F),supra.) that the alternatives would generate between ap- 202 GLQoE To CEQA b proximately 15 to 50 percent less sales revenue for mechanically restated at every stage of an approval Neiman-Marcus would,therefore,greatly reduce tax process. In this sense, 'feasibility' under CEQA revenues for the City.The Board's findings were encompasses `desirability' to the extent that desir- also based on the data pertaining to the new employ- ability is based on a reasonable balancing of the vel- ment opportunities and the economic multiplier evant economic, environmental, social, and effect on the City of the establishment of the spe- technological factors." cialty retail store proposed by Neiman-Marcus.The Board also considered the seismic safety and build- ing code matters mentioned above and the needs of In Sequoyah Hills Homeowners Association v the City's many constituencies." City of Oakland(Ist Dist. 1993) 23 Cal.App.4th 704, (106 Cal.App.3d at 913 (165 Cal.Rptr.401).) 714-717 [29 Cal.Rptr.2d 182], the Court of Appeal upheld findings approved by a city in connection with When making a finding that an environmentally its approval of a 46-unit residential subdivision. In re- superior alternative is infeasible, an agency may be jecting as infeasible an alternative project configuration entitled to rely on evidence that the alternative would not promote the underlying goals and objectives of with only 36 housing units, the respondent agency re- theIied on statements in the EIR indicating that alower- project. In City of Del Mary City of San Diego(4th Dist. 1982) 133 Cal.App.3d 410 (183 Cal.Rptr. density alternative"would defeat the project objectiveof providing 'the(east expensive single-family housing 89$1, the Court of Appeal considered whether it was for the vicinity,"'and concluded that for a de- ` proper for the City of San Diego to reject certain prof- crease in project density would be legally infeasible in ect alternatives as infeasible in approving planning that it would be prohibited by Government Code sec- decisions governing the first phase of buildout in a tion 65589.5,subdivision(j)."(23 Cal.App.4th at 715 ;ww community plan area to be fully developed in nine (29 Cal.Rptr.2d 1821 (emphasis in original).) That phases. The underlying community plan, as well as statute, the Court explained, prohibits agencies from the first phase approvals, assumed that growth would reducing the density of a proposed housing project inevitably continue in the northern part of San Diego that"complies with the applicable general plan,zoning, County. In considering the EIR for the phase one ap- and development policies" unless the project"would provals, the City rejected as infeasible several alter- have a specific, adverse effect upon the public health natives that conflicted with the assumptions of the or safety" that cannot be mitigated without lowering City's existing"growth management program"(which the density. Because the only significant unavoidable presumably was part of the City's General flan). The impact associated with the subject project was its visual petitioner, a neighboring city, ,asserted that it was im- impact,the respondent agency could not have made permissible for the City to treat the assumptions of the the required finding to justify.reducing the project's growth management program as a"given;because density from 46 to 36 units. (23 Cal.App.4th-at 715- doing so artificially restricted consideration of feasi- 716(29 Cal.Rptr.2d 182].) ble alternatives. Stated another way, the petitioner as- One of the leading cases on findings is Citizens serted that San Diego had confused its sense of what for Quality Growth,supra, 198 Cal.App.3d 433 (243 kind of development was "desirable" with what was Cal.Rptr. 727].which involved a general plan amend- "feasible" for CEQA purposes. (133 Cal.App.3d at ment and rezone allowing the industrial and commer- 416 (183 Cal.Rptr.398].) cial use of sensitive wetlands. In that decision, the The Court disagreed. Assuming that the growth Court of Appeal rejected several arguments offered by management program embodied a reasonable accom- the respondent city in support of its failure to issue modation of"various 'economic environmental,social, findings with respect to both mitigation measures and and technological factors"'(see Pub. Resources Code project alternatives. § 21061.1), the Court explained that: At trial,the city tried to justify its failure to make "San Diego is entitled to rely on (the program) in findings on the feasibility of 21 mitigation measures evaluating various project alternatives. The cost- set forth in the EIR by-arguing that such adoption benefit analysis which led to the accommodation is would be premature until the applicant had submitted of course subject to review, but it need not be a "specific development plan." Can appeal, the city Vlll The EIR Process 203 ......... _ ......... _.......................... a . Y' UA LOCAL 342 JOINT APPRENTICESHIP AND TRAINING , th& qt-"a& hiaiwWa& Ow('925)686-0730 fu(925)68S-7708 November 4, 2002RE(;- R 1D John Gioia NOV 5 2002 Chair, Board of Supervisors CLERK ��ri r}.n; �,��,; 651 Fine Street c<,. vIsons Martinez, CA 94563 RE:Amendments to Industrial Safety Ordinance Dear Supervisor Gioia: I am the Training Coordinator for the Plumbers and Stearrifitters Local #342 Joint Apprenticeship and Training Program. The apprentice program for pipefitter / steamfitter is a 5 year training program. The apprentices are required to complete 1080 hours of classroom training and 9000 hours of on-thejob training. Our classes are all registered as Diablo Valley College courses, and our instructors are California credentialed teachers. The program has been approved by the California Apprenticeship Council and is subject to audit by the Division of Apprenticeship Standards. ,The annual budget for our training program is in excess of $2,000,000. The training for the pipefitter/steamfitter classification is focused on industrial work,with a great deal of the training specifically applicable to both refinery new construction and refinery maintenance. This training includes training in the'installation, maintenance, rehabilitation;and demolition of pumps, heaters, coolers, heat exchanges, condensers, steam piping and related equipment, message tubing, vacuum tubing, instrumentation and control piping, oil bumers, stockers, fuel gas burners, tanks and related,equipment. The training in these subjects requires at least 4,500 hours of on-the-job training. In addition, our training program includes all welding process related to the installation maintenance, rehabilitation and demolition of high pressure piping, pipe bending and pipeline work. The on-the-job training hours for this component of our training program is at least 1500 hours, All of this training is specifically relevant to refinery work including new construction, turnarounds, maintenance, and refinery repair. Assuming that an apprentice worked an average of 2000 hours per year, it would take one of our apprentices at least three years to acquire the skills necessary for this work, In addition, the apprentice would be required to undergo a significant amount of classroom work on these subjects and the apprentice would have to complete both written and manual tests. I hope this.information is helpful to your deliberations. Sincerely, r - Bill Blalock Training Coordinator Dq� 14ct f pros r t ri- J C 1,-4 C M<t�CA-4 VIA C', CC C) . 5 re-c,.--t -( Ye t'P P c7 G �'+� `�+ 1 �. ✓Y+�`t r..t� lu Y-Cl 0 ANDERSEN, $ONNIFIELD & COTTLE ATTORNEYS AT LAW TELEPHONE: (925)802-14DO ONE CORPORATE CENTRE FACSIMILE: (825)825-0143 1320 WILLOW PASS ROAD-SUITE 500 CONCORD,CALIFORNIA 94520-5244 October 28, 2002 ED VIA NAND DELIVERY OCT r 2 8 2002 Mr. Michael , Planner CLERK BiE OF SUPERVIS RS CONTRA Co tj CO. Contra Co County Community Development Department 651 Pi Street,North Vying, 41 Floor M nez, CA 94553 l RE: Revised Initial Study and Proposed Negative Declaration Industrial Safety Ordinance County File No. CP02-30 .w Dear Mr. Henn: This office represents the Citizens for a Safer Environment, and the purpose of this letter is to address concerns and errors with the revised Initial Study(dated October 7, 2002) and proposed negative declaration for the proposed amendments to Ordinance 98-48, the Industrial Safety Ordinance. Attached hereto and incorporated herein by reference is a letter dated October 25, 2002 from David Golick, planning consultant, to the Contra Costa County Community Development Department. Mr. Golick, a consulting planner with over 25 years' experience as a planner, addresses the inadequacies of the revised Initial Study. 1. Prior Comments Incorporated Our firm initially responded to the proposed amendment and first Initial Study by a hand delivered letter, with two attached declarations,to the County on April 16, 2002. That correspondence is attached hereto and incorporated herein by reference, and those comments are incorporated as comments on the revised Initial Study and supplement the comments contained in this letter. 2. The Initial Study and Proposed Negative Declaration are Deficient. Under standard and accepted practice, as described in the State CEQA Guidelines, a lead agency, in this case Contra Costa County, undertakes an Initial Study to determine the appropriate environmental document for a proposed project. The Initial Study may conclude that the appropriate environmental document is a negative declaration, a mitigated negative declaration, 1305 H r CHO � Michael Henn October 28, 2002 Page 2 or an environmental impact report. The Initial Study and proposed conclusions are subject to public review and comment as described in CEQA. The lead agency must take all substantive comments received during the public review period under consideration before acting on the proposed project and its related environmental document. a. Requirements for Adequacy of Initial Study and Negative Declaration There is no doubt about the intent,purpose, and contents of an Initial Study. They are well defined by statute, the CEQA Guidelines, and over thirty years of CEQA related litigation A lead agency can approve the negative declaration only if it finds no substantial evidence that the project will have a significant effect on the environment. Pub Res Code §21080(c); 14 Cal Code Regs §15074(b). If there is substantial evidence, in light of the whole record before a lead agency, that a project may have a significant effect on the environment, the lead agency shall prepare a draft EIR. 14 Cal Code Regs §15064(f)(1) (emphasis added). If the lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may be presented with other substantial evidence that the project will not have a significant effect. No tail. Inc. v. City o Los Angeles (1974) 13 CaDd 68. In reviewing negative declarations, interested parties should focus on the proposed finding that the project will not have a significant impact, and if they believe that the project will have a significant environmental effect, they should: (1)Identify the specific effect; (2)Explain why the reviewer believes that the effect would occur; and(3) Explain why the effect would be significant. 14 Cal Code Regs §15204(b)(1)-(3). Argument, speculation, unsubstantiated opinion or narrative, or evidence that is clearly inaccurate or erroneous, or evidence that is not credible, shall not constitute substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. 14 Cal Code Regs §15064((f)(5). We believe it is important for the County to note that the purpose of the Initial Study is to assess whether the proposed project could have a significant impact on the environment. A lead agency cannot merely conduct superficial analysis of a project's potential impacts,but a legally defensible negative declaration must provide some explanation of its environmental conclusions. Citizens Assn for Sensible Development v. County of Ingo (1985) 172 Cal.App.3d 151, 171, 217 Cal.Rptr. 893, 906 (the Initial Study checklist must be supported by evidence in the record and the agency should not be allowed to hide behind its own failure to gather relevant data). The agency has the burden of investigating potential impacts and the record of its action must Michael Henn October 28, 2002 Page 3 demonstrate, and not assume, that significant impacts will not occur. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 248 Cal.Rptr. 352. Conclusions and checkmarks on an Initial Study checklist, such as the checklist used by Contra Costa County for the proposed amendments to the Industrial Safety Ordinance,must be based on evidence in the record. Checkmarks must be explained, if only briefly, to provide a basis for conclusions. See LeonoLEv. Monterey County Board OL—Supervisors (1990)222 Cal.App.3d 1337. In Sundstrom, the court stated that the lead agency must provide the public with information it used to base its conclusions, and an environmental checklist unsupported by facts and data does not constitute an adequate Initial Study. Sundstrom, 202 Cal.App.3d 296 (stating that mechanical application of the "fair argument" rule would defeat the purpose of CEQA where the local agency has failed to undertake an adequate Initial Study.) In Antioch V. Pittsburg (1986) 187 Ca1.App. 3d 1325,the court cited CitofCarmel-by-the-Sea v. Board oLSupervisors ofMonterev County 183 Cal.App.3d 229 regarding the need to consider in the Initial Study all activities and impacts involved in planning, implementation, and operation of a project. Section 15063(c)(1) of the Guidelines states that one of the purposes of an Initial Study is to, "provide the Lead Agency with information to use as the basis for deciding whether to prepare an EIR or Negative Declaration". Section 15063(d)(3) of the Guidelines further describes the purposes of an Initial Study by stating, "An Initial Study shall contain in brief form, ... an identification of environmental effects by use of a checklist,matrix, or other method,provided that entries on a checklist or other form are briefly explained to indicate that there is some evidence to support the entries. The brief explanation may be either through a narrative or a reference to another information source such as an attached map,photographs, or an earlier EIR or Negative Declaration. A reference to another document should include,where appropriate, a citation to the page or pages where the information is found." CEQA places the burden of environmental investigation on the government rather than the public, and if the agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record and deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 248 Cal.Rptr. 352, 360; see Christward Ministry v, Superior Court(1986) 184 Cal.App.3d 180, 197, 228 Cal.Rptr. 868 (court found negative declaration and Initial Study deficient, stating "the City's assertion it could find no `fair argument' there were any potentially significant impacts rests, in part, in its failure to undertake an adequate environmental analysis"). Michael Henn October 28, 2002 Page 4 b. Unclear whether first Initial Study is still effective The County prepared an Initial Study on March 25, 2002. Following numerous comments submitted by this office, County staff claimed that the first Initial Study was satisfactory. However, a new Initial Study, dated October 7, 2002, has now been presented. This new Initial Study makes no reference to the prior Initial Study, there is no explanation why a new Initial Study was prepared, and there is no explanation as to the effect on the first Initial Study. c._Failure-of Count's Initial Studty o Support Negative Declaration It is clear that the Initial Study prepared by Contra Costa County for the proposed amendment to the ISO does not meet the tests and standards established by statute, the State CEQA Guidelines, and case law. Contra.Costa County did not cite adequate or proper sources to support the checkmarked conclusions, and the cited sources fail to support the conlcusions. The lack of adequate, complete or appropriate studies, analyses, cited sources of information or any other substantial evidence in the Initial Study for the proposed amendments to the ISO means the study is flawed. In fact, Section 15070 of the State CEQA Guidelines states, "A public agency shall prepare or have prepared a proposed negative declaration or mitigated negative declaration for a project subject to CEQA when ... the Initial Study shows there is no substantial evidence, in light of the whole record before the agency, that the project may have a substantial effect on the environment..." In the subject case, Contra Costa County has provided no substantial evidence to support its conclusions. Section 15002(k)(2) of the Guidelines states that the purpose of the Initial Study is, "to determine whether the project may have a significant effect on the environment". Conclusions of the Initial Study must be based on substantial evidence in the public record. Section 15063(a)(1) of the Guidelines states, "All phases of project planning, implementation, and operation must be considered in the Initial Study of the project". The Discussion under Section 15063 of the Guidelines states, "The Initial Study is necessary in order to provide the factual and analytical basis for a Negative Declaration or to focus an EIR on significant effects of a project...This section also clarifies that the individual conclusions reached by an Initial Study must be based on some evidence". It is the duty and responsibility of the lead agency to provide evidence that a negative declaration or EIR is the appropriate environmental document. It is not the obligation of commenters to "present...facts or hard evidence...to show that the [proposed] amendments may cause" a significant environmental impact. Commenters may provide "facts or hard evidence" in response to data, reports, and other sources used by the lead agency in the Initial Study checklist. Michael Henn October 28, 2002 Page 5 However, it is a primary responsibility of the lead agency to provide source data and explanations of conclusions reached in the Initial Study checklist. The responsibility of commenters is to respond to (comment on)the studies and conclusions contained in the Initial Study. The responsibility of commenters is not to pre-empt the role of lead agencies,which are delegated by State law to conduct research and draw conclusions based on that research. It is the responsibility of Contra Costa County to provide substantial evidence to form the basis for their conclusions. Rather than even coming close to meeting the threshold requirements for a legally defensible negative declaration, the County refused to conduct any studies and refused to cite to adequate evidence in support of its conclusions. There is no evidence that there is sufficient labor to meet the requirements of the refineries, especially during turnarounds and shutdowns. There is no evidence that,with adoption of the proposed amendment, there will be sufficient labor to meet refinery needs. There is no evidence that labor will be available during emergencies, strikes, shutdowns, or turnarounds. There is no evidence of what training in a CAC-approved program entails, or how that makes a worker safer at a refinery. In fact, County staff,boards, commissions, and committees have repeatedly asserted and found that no accidents were caused by contractor worker error and that there is no connection between training and CAC-approved programs and improved safety/training.' The Initial Study ignores the County's own report (attached) showing that accidents at refineries are caused by refinery employees and not by contractors. The Initial Study ignores the substance of the cited sources, which state that: on average, employees of non-union contractors receive more safety training than union contractors'; closely supervised contract employees with more than one year at the facility have ` See comments by Randy Sawyer,March 20,2002 meeting of Contra Costa County Hazardous Materials Commission's Planning and Policy Committee; see finding of Public and Environmental Health Advisory Board(May 2,2002, May 23,2002)that"no compelling evidence that contract workers trained by programs approved by the California Apprenticeship Council had better safety records than contract workers trained by other programs;" see finding of Hazardous Materials Commission's Planning and Policy Committee that there is a "lack of evidence that contract workers trained in programs approved by the California Apprenticeship Council had better safety records than those trained elsewhere." 2 Kochan, Smith, et al.,Human Resource Strategies and Contingent Workers: The Case of Safety and Health in the Petrochemical Industry, Human Resource Management, Vo1.33, 1994, 55-76. Study states that on average union contract workers receive 6 hours of training while non-union contract workers receive 10 hours of training. We note that this study is not specific to Contra Costa refineries, and that no study has been performed regarding safety or skills training of workers at Contra Costa refineries. Michael Henn October 28, 2002 Page 6 lower accident rates than refinery employees'; neither safety training nor experience with the employer has any statistically significant impact on contract personnel accident rates; the way to make refineries safer is to have the refineries supervise all workers,both refinery and contractor employee'; and, the stakeholders (managers, workers, contractors, labor representatives) should be brought together into the process to improve safety. None of the sources cited in the Initial Study claim or conclude that the way to make a refinery safer is to train them all through a CAC-approved program or to require them to sign an apprenticeship agreement with a CAC-approved program. None of the cited sources study or claim that contractors at Contra Costa refineries are safer if they employ workers trained in CAC- approved programs or if they employ workers trained in other manners. Further,none of the sources cited in the Initial Study purports to be a study of refinery safety and practices in Contra Costa County; rather, the cited sources are a generalized look at refineries in Texas and elsewhere in the country in 1990-1994. In fact, the one study dealing with Contra Costa refineries explains that of the most recent 27 major incidents,not one was caused by contract 3 James B.Rebitzer,Job Safety and Contract Workers in the Petrochemical Industry, Industrial Relations,Vol.34, 1995,40-57, at 53. 4 Kochan, Smith,et al.,Human Resource Strategies and Contingent Workers: 2 he Case of Safety and Health in the Petrochemical Industry,Human Resource Management,Vol.33, 1994, 55-76; John Gray Institute,Managing Workplace Safety and Health: The Case of Contract Labor in the U.S. Petrochemical Industry, July 1991. 5 Kochan,Wells&Smith, Consequences of a Failed IR System: Contract Workers in the Petrochemical Industry, Sloan Management Review, Summer 1992,79-89, at 87;John Gray Institute,Managing Workplace Safety and Health: The Case of Contract Labor in the U.S. Petrochemical Industry, July 1991. Kochan, Smith, et al.,Human Resource Strategies and Contingent Workers: The Case of Safety and Health in the Petrochemical Industry,Human Resource Management, Vol.33, 1994, 55-76,at 71; James B. Rebitzer,Job Safety and Contract Workers in the Petrochemical Industry,Industrial Relations, Vol.34, 1995,40-57, at 56; Kochan,Wells& Smith, Consequences of a Failed IR System: Contract Workers in the Petrochemical Industry, Sloan Management Review, Summer 1992, 79-89, at 87; John Gray Institute,Managing Workplace Safety and Health: The Case of Contract Labor in the U.S. Petrochemical Industry,July 1991. It is interesting that this notion of bringing the stakeholders together to resolve the safety issues was proposed by Supervisors Glover and Uilkema several times,but essentially ignored and refused by the other supervisors. Michael Henn October 28, 2002 Page 7 labor, but that all 27 were caused by refinery employees or refinery operations.' The Initial Study has failed to cite this study or take its findings into consideration, even though it is extremely recent and relevant. An Initial Study cannot simply ignore evidence of a contradictory nature. Further, the Initial Study appears to rely on papers written about a study performed in July 1991,which is not specific to Contra Costa refineries. Prior to making conclusions regarding the impact of the proposed amendment, studies must be performed on Contra Costa refineries, including the receipt of quantitative evidence on the quality of training received by refinery workers. Until those studies are completed,the Initial Study is flawed and deficient. The Initial Study is flawed, it does not meet State and legal requirements, and evidence in the record mandates that an environmental impact report must be prepared. 3 The evidence constitutes a fair argument that the project may have a si nif cant effect on the environment. Not only is the Initial Study deficient,but the record is replete with substantial evidence of a fair argument that the project may have a significant impact on the environment and that an EIR must be prepared. Despite the mandates of CEQA, the Initial Study completely ignores the evidence. When qualified experts present conflicting evidence on the nature or extent of a project's impacts, the agency must accept the evidence tending to show that the impact might occur. fi& of .armel-by-the-Sea v. Board of Supervisors(1986) 183 Cal.App.3d 229, 249, 227 Cal.Rptr.889, 912. A review of evidence previously submitted to the County establishes that there is substantial evidence of a fair argument that the project may have a significant effect on the environment. Declaration of David Golick, April 16, 2002 • Addresses CEQA issues relating to March 25, 2002 Initial Study. ' September, 2002 study performed by Contra Costa County Health Services Department. Copy of study is attached to this letter and incorporated herein by reference. The other two incidents involved contract employees only in that contract employees were injured. Evidence indicates that those injured workers were employed by union contractors,and therefore trained in CAC-approved apprenticeship programs. See Investigative Report of Tosco Refinery Incident,attached and incorporated herein by reference. Michael Henn October 28, 2002 Mage 8 Declaration of John Sakamoto, April 16, 2002 • Explains that "The Bay Area refinery contractor base is composed of union signatory and non-signatory contractors." • Asserts that "The proposed changes requiring contractors to utilize only workers who have completed certain apprenticeship programs approved by the California Apprenticeship Council will disqualify a large portion of the labor base, placing capital projects, as well as maintenance and repair projects, in jeopardy." Letter from George ,June 10, 2002 • Testifies that "based on Cal-OSHA data, there is no correlation between attending the Trades' apprenticeship program and an improved safety record." • Testifies that "In fact, according to Cal-OSHA data, the refinery building trades workers have almost twice as many injuries as their non-trade counterparts." Letter from California Contractors Alliance,March 20, 2002 • Provided data that CCA-member companies have a significantly better safety performance record than comparable union contractors performing the same work in the Bay Area. Letter from Dr. Jay M. Finkelman, September 16, 2002 • States that "The math is irrefutable. If an employer is forced to hire(or select)more of a given population of workers with specific skill requirements - it will inevitably be forced to dig deeper into the pool of applicants or prospects. This typically entails a degradation of the average skill level of the final workforce that is selected." Study of Major Chemical Releases by County Health Services, September 24, 2002 • Establishes that of the past 27 major accidents and incidents at County refineries, 25 of those incidents did not involve contractors. Letter from Dr. Jay M. Finkelman, October 7, 2002 • Addresses claimed safety issues and under-reporting of injuries. Letter from David Golick, October 25, 2002 • Addresses CEQA issues relating to revised October 7, 2002 Initial Study Michael Henn October 28, 2002 Page 9 The aforementioned sources are incorporated herein by reference. Additionally, we have recently reviewed data from the California Division of Apprenticeship Standards regarding the number of apprentices in crafts working at refineries. The numbers make it clear that if the amendment is passed, there may well be insufficient labor to meet the needs of the refineries, especially during peak periods. For example, in 1991 the Contra Costa Plumbers and Pipefitters JATC graduated just one apprentice. Over the past five years,the data shows that in Contra Costa, Alameda, Solano and Napa counties,there were about 85 total plumbing and pipefitting graduates from CAC-approved programs.' Further, the 2000-2001 Biennial Report from the Department of Industrial Relations (copy attached) explains that the DAS has a records unit which keeps centralized records for"all active apprentices statewide, in addition to graduates in the last 20 years or more." The low rate of graduating apprentices in the area in the trades working at the refineries establishes that there are likely insufficient workers meeting the restrictions of the proposed amendment. These records are incorporated herein by reference and they should be obtained and evaluated by the County prior to adoption of the proposed amendment. The evidence above, along with all the evidence in the record,points to one inescapable and likely conclusion: in the event the proposed amendment is adopted there is insufficient labor in the area meeting the new requirements of the amendment to staff the refineries.' This has the strong potential to lead to unsafe working conditions, chemical releases, fires, injuries, and other accidents and incidents having a negative impact on the environment, transportation, air quality, water quality and other resources. As required by CEQA, the County needs to gather and evaluate the relevant data prior to making its decision. The County has added clauses which state that the ordinance does not apply to contractors performing work immediately necessary to respond to an "emergency" and that "other workers" may be hired if"trained" workers are not available after a two-day search. There is no evidence in the record that sufficient labor will available to respond to emergency situations or that sufficient labor will be available if"trained" workers are unavailable. Does the Board expect that other workers will be sitting around waiting for work, and when an emergency 8 It is not clear how many of these are plumbers and how many are pipefitters. It is also not clear how many are available for work and how many are still in the area. 9 See April 16, 2002 Declaration of John M. Sakamoto, Para. 5; see testimony of Brook Seymour at February 20, 2002 meeting of Planning and Policy Development Committee of Hazardous Materials Commission. Michael Henn October 28, 2002 Page 10 does occur or when so-called "trained" workers are unavailable, these "other" workers will be available for work? There is no evidence that such "other" workers" will be available. Rather, there is a shortage of local labor, and with enactment of the proposed amendment, a large portion of the currently available labor pool will be disqualified.11 Where will that workforce go? Surely the County cannot believe that those workers,with families to feed, clothe and shelter,will just "hang around" and wait for an emergency or the unavailability of"trained" workers. Surely the County cannot believe that the contractors employing those workers will remain in business in the area, despite losing a large portion of their respective business. There is no evidence in the record that the labor will be available, and this raises serious concerns regarding impacts on the environment, such as water and air quality,wildlife, wildlife habitat, and the health and safety of the citizens of Contra Costa County living near refineries and working at refineries." The Project Description makes the summary conclusion that the proposed amendment would "provide for better trained workers" and that it would "provide for an improved contractor selection process." These are merely summary conclusions without the requisite analysis our support. None of the cited sources establishes that the proposed amendment will have the tendency to provide for better trained workers or that the contractor selection process will be improved. No evidence establishes how CAC-approved programs prepare workers for refinery work in a better manner than other programs. In fact, evidence in the record establishes that the proposed amendment will lead to more incidents and injuries at the refineries.12 Even if the "other" workers are available, it is curious that the County is essentially declaring that the workers who are not trained in CAC-approved apprenticeship programs are not "as safe" as workers trained in CAC-approved programs. Essentially,by classifying non-CAC trained 10 April 16,2002 Declaration of John M. Sakamato,Para. 59 see testimony of Brook Seymour at February 20, 2002 meeting of Planning and Policy Development Committee of Hazardous Materials Commission. " The same argument applies to the "two-day" search condition. There is no evidence that other contractors will be available to train and employ "other workers" and there is no evidence that"other workers" will even be available to work at the refineries. " See June 10, 2002 letter from George Smith to the County Hazardous Materials Commission (attached), in which Mr. Smith asserts that "according to Cal-OSHA data, the refinery building trades workers have almost twice as many injuries as their non-trade counterparts." The Bureau of Labor Statistics and Cal-OSHA maintain data regarding incidents and accidents at refineries. Even though this data could be helpful in determining whether the proposed amendment could lead to "better" or "improved" training and safety, the County has failed to obtain and evaluate the data. Michael Henn October 28, 2002 Page 11 workers as "other than trained," the connotation is that those workers are "untrained" or"unsafe." However, during emergencies, when life and property are at peril and safety is of paramount concern, the County will then allow these alleged "unsafe/untrained" workers to work in the refineries. This raises the issue of even more environmental impacts, since these allegedly "untrained" workers will be at the refineries during emergencies,when impacts on the environment, such as water and air quality,wildlife, wildlife habitat, and the health and safety of the citizens of Contra Costa County living near refineries and working at refineries, have the highest potential for occurring. There has been no analysis of these issues or potential impacts. While a definition of"emergency" is proffered, it is not clear that an emergency includes situations such as strikes, slowdowns, lockouts or labor shortages. Once the amendment takes effect, the ordinance operates to prefer union labor for refinery work, and thus makes more likely the possibility of labor disputes, strikes, shutdowns, and stoppages or slowdowns.13 Who will provide the labor in that event? What happens when a situation like the recent one with the dockworkers happens at the refineries? The impacts of the recent dockworkers slowdown and lockout will pale in comparison to a shutdown of the refineries and the impact on the surrounding environment and the price of gas. There has been no analysis of the potential impacts. Additionally, Section 3(B) of the proposed contractor safety/training amendment specifies that in order for contractors to be eligible to work at the refineries in the County, the contractors must employ: only journey-level workers who have graduated from a CAC-approved apprenticeship program; only apprentices who are enrolled in a CAC-approved apprenticeship program; and journey level workers who have completed the requisite safety and skills training. As drafted, it appears that the contractors must employ the requisite workers within the contracting company, wherever that contractor works, and not just at refineries in the County. For instance, if a contractor is building a winery in Napa,working on a chemical plant in Nevada, a refinery in Louisiana, or a high school in Sacramento, at all those jobs the contractor must comply with Section 3(B)or the contractor will be unable to work at refineries in Contra Costa County. There has bee no study of whether journey-level workers having graduated from CAC-approved apprenticeship programs are available to meet the staffing needs across the market. The workforce is now even more depleted. This leads to further environmental impacts which have not been addressed. 13 In 1996,unions were in decline,open shop share of the construction industry dollar was about 70-80% of the total market, and unions were attempting to find innovative ways to regain market share. Northrup &White, Subsidizing Contractors to Gain Employment: Construction Union Job Targeting, 17 Berkeley J. Emp. &Lab. L. 62 (1996) Michael Henn October 28, 2002 Page 12 3. Summary While CEQA requires that the County gather relevant data and study the potential impacts of the proposed amendment to the ISO, the County has ignored evidence in the record of a fair argument that the proposed amendment may have a significant impact on the environment, the County relied on cited sources that do not stand for the propositions and conclusions of the Initial Study and the County has ignored information and data in the cited sources. The County has failed to meet its burden of investigating potential impacts and the record does not demonstrate that significant impacts will not occur. Even though the County has chosen to ignore the foregoing, CEQA mandates that the County cannot hide behind its own failure, as lead agency,to gather and evaluate relevant data. The Initial Study is deficient and evidence in the record establishes that an EIR must be prepared. V s, NICHOLAS ROSCHA NR:kc Enclosures cc: Clerk, hoard of Supervisors (via hand delivery) David Golick Consulting Planner 4241 Dubhe Court Concord, CA 94521 October 25, 2002 Michael Henn Planner Community Development Department Contra Costa County 651 Pine Street, North Wing, 4th Floor Martinez,CA 94555 RE: Proposed Amendments to the Contra Costa County Industrial Safety Ordinance, Initial Study, County File#CP02-30 Dear Mike: I have been asked to review the Initial Study prepared for the proposed amendments to the Contra Costa County Industrial Safety Ordinance. My assessment is divided into two sections„General CommentsandEnvironmental Checklist Form Comments_ I General Comments A. The quality of the Initial Study needs to be improved in order to provide an empirical evaluation of the potential environmental impacts of the proposed amendments. The Initial Study needs input from individuals with technical expertise in the various aspects of the petrochemical and related fields. It is apparent that the Initial Study was written by land planners who are not experts in industrial safety policies, regulations, and their potential environmental impacts. B. Contra Costa County used the generic checklist format for the Initial Study. As a stand-alone document, the checklist is appropriate for activities such as construction projects. Policy and ordinance proposals, such as the Industrial Safety Ordinance, are individually unique and require supplemental narrative analyses to provide a realistic and complete assessment of the potential impacts on the environment. C. The Initial Study and proposed Negative Declaration dated October 7, 2002, does not mention the status of the earlier Initial Study and proposed Negative Declaration dated March 25, 2002. It is very confusing to have two Initial Studies and proposed Negative Declarations prepared and made available for public comment for the same project. The concerned public needs to know the status of the March and October documents and their interrelationship. Because of the confusing relationship among documents, my comments regarding the Initial Studies include statements within this letter as well as Industrial Safety Ordinance statements contained in my declaration provided to the County in April, 2002, regarding,the March, 20302 Initial Study. D. The Table of Contents on page 2 refers to "Major Changes and Potential Impacts", but the project description on page 1 of the Environmental Checklist Form refers to "minor revision". First, it is confusing for the reader to comprehend whether the County believes the changes are major or minor. Second, the Environmental Checklist should be a value neutral document Item #8 on page 1 of the Environmental Checklist should say "proposed amendments to the Industrial Safety Ordinance rather than "minor revision to the...Industrial safety Ordinance". II Environmental Checklist Form Comments A, The Initial Study does not assess the potential environmental impacts of the proposed project, the ordinance amendment. The Initial Study does not evaluate any impacts. Technical sources cited provide general information regarding issues and situations which are not relevant or germane to the specific proposals contained in the proposed County ordinance amendment. In each subject area of the checklist, there should be a discussion of the potential environmental impacts, reasons why the potential impacts are significant or insignificant, and specific evaluations and/or specific relevant sources to support the conclusions. B. Summary statements contained in the Environmental Checklist should discuss potential impacts as stated in the above paragraph. Summary statements found in this Environmental Checklist primarily are boilerplate generalizations that are not related to the proposed project and an informative discussion of potential impacts. Summary statements prepared by County staff repeat truisms which are unrelated to the project, such as that new physical construction of facilities would have to comply with CEQA. C. Page 1, items 6 and 7: This is confusing. Inasmuch as the zoning must be consistent with the General Plan, the General Plan designation cannot be listed as "n.a." and the zoning designation listed as "any non-agricultural zoning district". Also,the above references zoning designation would erroneously lead a reader to believe that the proposed ordinance amendment applies to all residential, commercial, open space, and other zoning,districts. D. Page 1, item 8: The project description should be value-free and not conclusive in nature. Statements such as "minor revision to the existing...Ordinance" and "improved contractor selection" are not appropriate. Italics added for emphasis. E. Page 1, item 9: The Initial Study lacks a description of "Surrounding Land Uses and Setting". The only explanation is "n.a.". CEQA Guidelines call for a description of surrounding land uses and the setting. F. General outside sources are cited in the Summary section for each subject area. These sources are not specific to and do not directly relate to the proposed Contra Costa County ordinance amendment Also, it is apparent that conclusions reached in the Initial Study are based on no research, technical industrial Safety Ordinance .3- reports, 3reports, or studies specifically done for this project. Relevant cited sources should refer to specific page numbers for each subject area under assessment. However, that is not the case with this Initial Study. Mather than cite specific page numbers, this Initial Study cites page numbers in publications where the entire article or source may be found. Such citations are not helpful to the reviewer. CEQA Guidelines Section 15063(dX3)states, "A reference to another document should include, where appropriate, a citation to the page or pages where the information is found". The CEQA Guidelines Discussion under Section 15063 states, "...the individual conclusions reached by an Initial Study must be based on some evidence. Entries on a checklist or another form should be briefly explained to indicate the basis for determinations." (Leonoff y. Monterey County Board of Supervisors(1990)222 Cal. App. 3d 1337) G. Summary statements should be based on specific studies done for this project and accepted analytical reports completed by experts in the field of industrial safety and relevant to this ,project. No such studies and reports are documented in this Initial Study. The summary statements in this Initial Study contain unsubstantiated statements such as that under the proposed ordinance amendment the level of employee training would be improved and the contractor selection process would be improved. CEQA Guidelines Section 15063(d)(3) states, "an Initial Study shall contain in brief form—entries on a checklist or other form...briefly explained to indicate that there is some evidence to support the entries". This Initial Study does not comply with Section 15063(dX3). H. In this Initial Study, summary statements often use the clause, "from an analysis of the proposed ordinance and the industrial facilities to which the training regulations would apply, there is no substantial evidence..." However, the reader is never advised where that analysis may be read and reviewed. In Sundstrom v. Mendocino (1988) 202 Cal. App. 3d 295, the court said an agency must provide the information it used to reach its conclusions, and that a checklist unsupported by data and facts is not sufficient for an adequate Initial Study. 1. Page 4, Agricultural Resources Summary: The Summary is not correct. Agricultural resources potentially could be impacted whether or not, "the proposed changes would...apply to properties in agricultural zoning or use". The Initial Study should recognize that industrial uses in one zoning district can impact agricultural uses in another zoning district. J. Pages 4.5, Air Quality: There could be a significant impact on air quality or other environmental factors if an operational disruption occurs because of an inadequate number of workers or inadequately trained workers. This potential impact is not addressed in the Initial Study. K. Page 5, Air Quality Summary: The last sentence states, "The probable safety impacts resulting from improved worker training would be a beneficial impact of the changes." It has not been demonstrated in the Initial Study that the proposed changes to worker training would be an improvement. No research has been provided that past industrial accidents have been the result of poor worker training, and that proposed worker training modifications would reduce the possibility of such accidents in the future. The sources cited do not relate to the issues. Industrial Safety Ordinance .4- L. 4-L. Pages 6-7, Biological Resources Summary: No relevant sources are offered for the last sentence which states, "The impacts from increased worker training and the selection of contractors with better safety records would be beneficial to the biologic resources of the County because of a reasonable probability of a lower accident rate and hazardous releases". This is an unsubstantiated comment,not a statement of fact. M. Page 7, Cultural Resources Summary: The first sentence says there will be "no effect on cultural resources". The last sentence says impacts "would be beneficial to any affected cultural resources". This paragraph is internally inconsistent and confusing. N. Page 8, Geology and Soils Summary: 1 do not understand the last sentence of the first paragraph, which states, "The changes would improve the level of employee training, and improve the contractor selection process so that stationary sources must consider the contractor's safety record". Perhaps part of the thought was omitted. Again, this Summary contains the unsubstantiated statement that "improved worker training" would reduce "the frequency of accidental spills and releases". The proposed ordinance amendment would modify worker training programs. Submitted data does not conclude that worker training would be improved. Also, it is not a proven fact that there is a direct correlation between worker training and accidents. 0. Page 10, Hazards and Hazardous Materials Summary: Statements such as ,'use of better trained workers" would reduce hazardous incidents presupposes that.past accidents have been caused by workers who were not well trained. No documentation is presented to substantiate this comment. Source#9 used in the Initial Study and cited as a source document for the Hazards and Hazardous Materials section does not support the conclusions reached in the Initial Study. Source #9 concludes that worker safety is enhanced by close supervision by company management, not by safety training. The proposed amendments to the County ordinance do not address factors cited in source #9 to improve worker safety and reduce the potential for accidents. According to source #9, as well as source #8, changes to federal and state laws would be needed to increase safety. These changes cannot be accomplished by a county ordinance amendment, no matter how well meaning that proposed county regulation may be. Page 87 of source #8 discusses ways to improve occupational safety. All discussed possible improvements are dependent on the federal government and an expanded role for the Occupational Safety and Health Administration (OSHA). Source #6, Causes of Underreporting of Job Injuries, provides interesting information regarding injuries. However, source #6 is unrelated to the Initial Study topic of Hazards and Hazardous Materials, and it provides no source documentation for any of the questions or answers on pages 9 and 10 of the Initial Study. P. Page 16, Transportation/Traffic Summary: One of the cited sources is #5, a report by James Rebitzer, Ph.D. This source does not discuss transportation or traffic related issues. Q. Page 18, Mandatory Findings of Significance Summary: Nowhere in the document is there an analysis of the availability of a labor supply to do the required work. The cited sources do not provide a rationale for the "no Industrial Safety Ordinance impact" determinations, nor do they provide substantiation for conclusions reached in the Summary section. Sources have to be reasonably related to the proposed project and specific to the project. They should have page citations that address checklist questions and issues, not citations for the whole article being used as a source. R. Training and Accidents: Aside from the information discussed above, it is interesting to note that source # 5 concludes that training by host plants and close supervision by host plant management results in improved worker safety. The proposed ordinance amendment does not address training and supervision by host plant management. Source#11 questions the validity of available statistics regarding occupational injuries and the reasons for underreporting of injuries and illnesses. Based on factors discussed in this article, the real or correct relationship between injuries by contract workers versus company employees needs additional research not cited in the Initial Study. Source #11 questions the validity of assumed relationships between injuries received by direct-hire or company workers and contract workers. I am aware of only one relevant study conducted in Contra Costa County which evaluated major incidents at refineries. This study, performed by the Contra Costa County Health Services Department, analyzed 27 major incidents at refineries located in this county. The study concluded that 25 of the 27 incidents did not involve contract workers, and none of the 27 incidents were caused by contract workers. Even based on the limited source data cited in the Initial Study, issues regarding worker training and occupational injuries are considerably more complex than stated in the Initial Study Summaries. Some of the issues that need to be addressed include the source of the training, the type of training to be_provided, and training needs of long term versus short term employees. After reading the proposed County ordinance amendment, the Initial Study, and sources cited in the Initial Study, I conclude that County staff has prepared an inadequate environmental document. The Initial Study does not address the complex environmental issues regarding training and safety. Many conclusions are not based on fact, and are contradicted by cited sources. The CEQA Guidelines require that conclusions be substantiated in the Initial Study, but they are not verified in this Initial Study. Sincerely yours, David Golick Consulting Planner ANDERSEN, BONNIFIELD & C&tL`-6' ''A ATTORNEYS AT LAW r a n+1 r !! TELEPHONE:1925)602-1400 ONE CORPORATE CENTRE c `� i i EA SIMILE: (925)825-0143 1320 WILLOW PASS ROAD-SUITE 500 CONCORD,CALIFORNIA 94520-5244;i ,JT HAND DELIVERED Michael Henn Community Development Department Contra Costa County 651 Pine Street,North Wing, 4"Floor Martinez, California 94553 Re: Proposed Amendments to Industrial,Safety Ordinance of the Contra Costa County Code County File#CP02-30 Dear Mr. Henn: Our law office represents a number of concerned residents and businesses of Contra Costa County. We appreciate the opportunity, albeit upon abbreviated notice, to review the proposed amendments to the Industrial Safety Ordinance {"ISO")as set forth in the Notice of Public Review and Intent to Adopt a Proposed Negative Declaration dated March 25,2002.' We have been asked to submit this letter setting forth our comments on the proposed changes and offering into the administrative record the enclosed substantial evidence of impacts that have not been adequately investigated, analyzed or mitigated. Accordingly, the proposed negative declaration is improper since under these circumstances the California Environmental Quality Act("CEQA") requires an Environmental Impact Report to be prepared. Submitted with our comments are two expert declarations in opposition to the proposed negative declaration. The first expert, Dave Golick, has been a professional city planner in Contra Costa County for 29 years; having been in charge of the Planning Division of the City of Concord for ten years. He has prepared or reviewed over a thousand Initial Studies and Environmental Impact Reports under CEQA. Mr. Golick's declaration makes clear that the Initial Report grossly fails to contain an adequate basis for a negative declaration and that an EIR is required. Our second expert, John M. Sakamoto, is a professional licensed engineer and Senior Vice President with Eichleay Engineering Inc. of California. Eichleay is one of the nation's largest engineering firms. Mr. 'We question whether the proposed negative declaration is premature since your Notice states these changes are still under review by the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. T Michael Henn April 16, 2002 Page 2 Sakamoto has over 20 years experience in petrochemical and heavy industrial facilities; including extensive experience in the management, design, and construction of major petrochemical and refinery facilities. Mr. Sakamoto is thoroughly familiar with the labor markets involved and the significant reduction in the labor base that the proposed apprenticeship changes will have on that limited supply of skilled labor. That reduction will,in turn, adversely impact safety at refineries in the areas of risk of injury, property damage and offsite releases. He also points out the complete absence of supporting data for these changes and the need for an Environmental Impact Report. It is important to keep in mind that there are thousands of skilled workers from a limited labor pool who have the necessary skills and experience to work on refinery projects. This is specialized work requiring skills and abilities not required on the average construction project. Any adverse effect on the labor force will have direct and indirect impacts on the environment. While the proposed changes pertaining to imposition of apprenticeship programs ostensibly seek to contribute to the safe operation of the refinery facilities in this county, their real effect will be to drastically reduce the limited workforce that has the requisite skills to safely operate the facilities. Thus, instead of increasing safety,they will have the exact opposite effect of decreasing safety as well as adversely impact the environment. The changes are ill-considered and an EIR would certainly provide the data demonstrating the severe impacts these changes would have if implemented. Our clients believe that the potential environmental impacts resulting from the enactment of the proposed changes to the Industrial Safety Ordinance have not only not been adequately addressed but have not been addressed at all. Given the seriousness of the potential adverse impacts on the environment,the County's failure to require an EIR under these circumstances is cause for alarm. 1. The Failure to Cite Supporting Facts or Studies Renders the Initial Study Defective Even a cursory review of the Initial Study and Proposed Negative Declaration ("Initial Study") reveals that the Initial Study was not prepared in conformance with the requirements of CEQA. There is, practically speaking, a complete failure to provide citation to supporting documentation of any kind to the conclusions drawn. a. There is a complete failure to cite supporting evidence regarding the proposed apprenticeship changes As to the apprenticeship program changes,there is absolutely no supporting documentation of any kind whatsoever cited. Under subsection(4)to Section Il. Project Description of the Initial Study no data or studies are cited whatsoever.This failure alone causes the Initial Study to be grossly defective. All that is contained in that subsection are completely unsupported conclusions. Michael Henn April 16, 2002 Page 3 Furthermore,those`conclusions' are completely speculative. The statement that a project"may be better than the existing training programs"adds nothing to the analysis. The project may be worse just as easily. There is nothing to document the claim that the proposed apprenticeship programs would be better or worse that present training Thus the conclusion that the project"can decrease the potential for a major chemical accident or release"is no more probable than that it could just as easily increase the potential for a major chemical accident or release.In fact,there is believed to be statistical data available that would demonstrate that the safety record of graduates from apprenticeship programs is worse than that of those contractors who rely on in- house training of their workforce. In any event, none of this has been considered. Instead, completely unfounded conclusions are made, which cannot serve as the basis for a negative declaration. [Gulick and Sakamoto declarations.] b. No Meaningful Evidence Is Cited Supporting The Checklist Questions The conclusions reached in the Initial Study are based on the`answers'to the Environmental Checklist Form attached to the Initial Study.However,while the form has been completed, in part, it has not been completed with the level of detail and analysis required by CEQA. It is simply not enough to complete the checklist questions by merely checking a box. Brief,but specific reference to supporting facts and documentation needs to be provided. The Initial Study contains no such references. The sole`attempt'to reference supporting facts is the statement"(All Source#4)in response to a few of the questions on the checklist. On page 3 of the Environmental Checklist under the heading "SOURCES" four items are listed. Three of them have nothing to do with the project specifics as they are simply the Contra Costa Resource Mapping System,the County General Plan and General Plan and Zoning Maps. The Fourth is"Project Description." The Project Description is set forth under heading"II.Project Description"of the Initial Study. It is improper to refer to the Project Description as supporting documentation. [See Golick Declaration,par. 15, 4:11-12] All the Project Description contains is the recommendations as to what changes should be made,without any supporting facts or data.No real data or studies are cited whatsoever upon which a person could draw conclusions. CEQA guidelines,Appendix G,"Evaluation of Environmental Impacts",item 2 states"All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level,indirect as well as direct,and construction as well as operational impacts." Moreover,"[t]he explanation of each issue should identify: a)the significance criteria or threshold,if any,used to evaluate each question;and b)the mitigation measure identified,if any,to reduce the impact to less than significant" [Id.,item 9]"Lead agencies are encourage to incorporate into the checklist references to information sources for potential impacts(e.g. general plans,zoning a f 1y . � t Michael Fenn April 16, 2002 Page 4 ordinances). Reference to a previously prepared or outside documents should, where appropriate, include a reference to the page or pages where the statement is substantiated."[Id.,item 6]"A source list should be attached, and other sources used or individuals contacted should be cited in the discussion." [Id., item 7] 14 California Code of Regulations Section 15063 sets forth the guidelines for preparation of an Initial Study. Subsection(a)(3)states"An initial study may rely upon expert opinion support by facts,technical studies or other substantial evidence to document its findings." Subsection(C)(5) states that the purpose of an Initial Study are to"Provide documentation of the factual basis for the finding in a Negative Declaration that a project will not have a significant effect on the environment. Subsection(D)(3) states that an Initial Study shall contain"an identification of the environmental effects by use of a checklist, matrix, or other method, provided that entries on a checklist or other form are briefly explained to indicate that there is some evidence to support the entries. The brief explanation may be either through a narrative or a reference to another information source such as an attached map, photographs, or an earlier EIR or negative declaration. A reference to another document should include,where appropriate,a citation to the page or pages where the information is found." In the Discussion section following the foregoing guidelines its states "This section also clarifies that the individual conclusions reached by an initial study must be based on some evidence. Entries on a checklist or other form should be briefly explained to indicate the basis for the determinations. These explanations are not intended to be as detailed as an EIR (Leonoff v. Monterey County Board of Supervisors(1990) 222 Cal.App.3d 1337) What is patently obvious from a review of the Checklist responses is that the Initial Study has completely failed to support its recommendation for a negative declaration. 2. The Initial Study Completely Fails to List Any Beneficial Impacts The Initial Study States on page 4 under heading B.CERA Process,that"Where beneficial impacts are likely, this initial study so indicates:" Remarkably, no impacts of any kind are noted, beneficial or adverse. An initial study must consider all impacts of a project. Sundstrorn v. Mendocino(1988)202 Cal.App.3d296 It was incumbent on the authors of the Initial Study to list both potential beneficial impacts as well as adverse impacts. Presumably, there are no beneficial impacts to the project, which suggests the project is without merit. [Golick declaration, par. 5-6, 2:11-22] Michael Henn April 16, 2002 Page 5 3. The Initial Study Incorrectly Describes the Apprenticeship Program Language Contained in the Proposed Amendments and Is Substantively Different From the Actual Language Proposed On page 9 of the Initial Study its states that in the event a contractor had not executed an apprenticeship agreement within the first three years,for each apprenticeable occupation it could alternatively"have at least 50%of employees be journey level in each apprenticeable occupation." The actual language of the proposed amendments under Section(C) (3)(a) states: "or, (ii) employ a journey level workforce in which 50%of the workers in each apprenticeable occupation employed by that contractor at the Stationary Source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council." There is a significant difference between having to have 50%of the employees j ourneymen,and the language ofthe proposed change which is that all workers have to be journeyman,but only 50%need be from an apprentice program. There is a substantial inconsistency between the effect of the statute as described and the actual language proposed.The ambiguity created precludes effective public comment.[Golick declaration, par. 8, 2:226-28] 4. The County Has Completely Failed to Evaluate Achievement of Short-Term Environmental Goals to the Disadvantage of Long-Term Environmental Goals Which is Mandated By Statute Section 21083 of the California Public Resources Code provides that in determining whether a project may have a "significant effect on the environment" a "significant effect" will be found under subsection (a) if "A proposed project has' the potential to degrade the quality of the environment, curtail the range of the environment,or to achieve short-term,to the disadvantage of long-term,environmental goals." This is a mandatory requirement. However,the Checklist form used in the Initial Study,under Section XVII. Mandatory Findings of Significance fails to include any consideration of this issue; and the Initial Study fails to address it anywhere else. If, in fact, achievement of short-term goals in to the disadvantage of long-term environmental goals an EIR must be obtained. Until there is due consideration given this issue,the Initial Study is defective. 5. The Proposed Apprenticeship Requirements Will Severely Impact the Available Labor Force Adversely Impacting Safe Operation of the Refineries,and Increasing Risk of Accidents Resulting in Environmental Harm As set forth in the Declaration of Mr. Sakarnoto, there is a limited skilled labor force available to perform new construction and/or maintenance and repair of the four refineries in Contra Costa County. Imposition of apprenticeship program requirements will immediately remove a substantial portion of that labor force from eligibility to work at the refineries. As Mr. Sakamoto Michael Henn April 16, 2002 Page 6 concludes, based on his extensive experience in design, management and construction of petrochemical facilities,this labor shortfall may result in decreased safety at the refineries including increased risk of accidents resulting in adverse environmental impacts.[Sakamoto declaration,par. 5-6, 2:13-21] 6. Many Other Adverse Impacts Were Not Given Due Consideration in the Initial Study As previously indicated,if substantial evidence shows that a proposed action may have even a single unmitigated adverse environmental effect,a full EIR must be prepared. It is inadequate to cite to the project description (which omits supporting data of any kind) in support of a negative declaration Moreover, since the parameters of the proposed changes to the ISO are so fluid and unsettled,its potential adverse environmental effects cannot adequately be analyzed. Nevertheless, it is clear from a review of the proposed changes to the ISO as well as common sense, that the proposed changes to the ISO will have numerous adverse environmental impacts. The nature of these impacts will be briefly discussed below. Also many of these are addressed by Mr. Golick in his declaration. [Golick declaration,par. 17-24, 2:19-5:28] It is important to note that there are thousands of skilled workers who work at the Contra Costa refineries.If their ability to work is impaired or precluded by the apprenticeship changes there will be a host of adverse impacts directly and indirectly affecting the environment. Chief among these would be increased impact on traffic, and the probable decrease in production of refinery products. Many other areas would be affected as well. 1. Land Use. The proposed changes to the ISO do not address or analyze whether it impacts changes in land use nor does it explain why possible change in land use is not a significant environmental impact. Furthermore,the proposed changes to the ISO is likely to impact the location, distribution, density and/or growth rate of the human population in the area, including temporary increased occupancy in the subject areas. There'is likely to be substantial changes in the number of jobs and type of employment in the subject area-due to the proposed changes to the ISO. It is possible that the proposed changes to the ISO will result in development outside the subject area which might have adverse environmental impacts. 2. Consistency with Other Ordinances and Policies. There has been no determination that the proposed changes to the ISO is consistent with other federal,state and local ordinances and policies. Nowhere is there any analysis of other statutes, laws and ordinances as they relate to the proposed changes to the ISO and such an analysis must be made. Yet the proposed changes regarding apprenticeship programs arguably seek to unlawfully preempt applicable state and local laws which are controlling. } Michael Henn April 16, 2002 Page 7 3. Earth. There has been no examination of whether the proposed changes to the ISO will result in unstable earth conditions or changes in the geologic substructure. Throughout.Contra Costa County there is evidence of diverse and unstable soil and ground water conditions and potentially significant seismic activity areas, all of which should require detailed analysis. 4. Air. It is likely the proposed changes to the ISO will cause substantial air emissions and deterioration of air quality because of delays in maintenance and repair. Additionally, no consideration is given as to whether the proposed changes to the ISO will impact the available labor pool to such an extent that repair and maintenance of the industrial facilities cannot be readily undertaken. 5. Water. No investigation has been undertaken to determine whether the proposed changes to the ISO and resulting time delays will impact ground water. 6. Plant Life. It is unclear whetherthe proposed changes to the ISO will impact the numbers of any unique,rare and dangerous species of plant or animal habitat. 7. Animal Life. It is not known whether the Proposed changes to the ISO will have any potential environmental effect on animal life.Adjacent to the refineries are open lands,wetlands or other habitat areas of protected animals such as the red leg frog, Alameda whipsnake, tiger salamander and burrowing owls. A reduction in safety resulting in offsite releases will directly impact these animals. 8. Noise. There has been no determination whether there is a potential environmental effect relating to noise emanating from the proposed changes to the ISO. 9. Natural Resources. It is not known whether the proposed changes to the ISO will increase the use of fuel and water, and whether such increase will be insignificant or not. 10. Risk of Upset. There is no indication of whether the proposed changes to the ISO has seismic ramifications. 11. .lobs and Housing. It is not known whether the proposed action will increase or decrease jobs and whether it will bring new people to the general area. 12. Public Services. The effects of the proposed changes to the ISO upon public services including fire and protection is not known at this time. Michael Henn April 16, 2002 Page 8 13. Energv. It is not known whether the proposed action affects substantial fuel and energy use. 14. Aesthetics. It has not been determined whether the proposed changes to the ISO will have a significant aesthetic effect on the environment. 15. Mineral Resources: Gasoline, jet fuel, heating oil, and all other petrochemical products produced at the refineries will likely be adversely impacted since inadequate labor resulting from the apprenticeship changes will slow new construction, maintenance and repair, increase downtime due to accidents and generally result in lower production of these products 16. Transportation: Significant adverse impacts on traffic can be anticipated due to the apprenticeship changes. A significant part of the limited skilled workforce will be precluded from working at the refineries. These workers will need to travel greater distances to find replacement work. At the same time whatever few workers from outside the area may qualify to work at the refineries will have to travel from outside the county adding significantly to the numbers of cars and trucks on our roadways. AN ENVIRONMENTAL IMPACT REPORT IS NECESSARY TO PROPERLY EVALUATE THE POTENTIAL ADVERSE IMPACTS TO THE ENVIRONMENT Our clients believe that full public hearings are necessary regarding legislation where great public concern is expressed. The environmental report process would provide such public hearings and would be sensitive to fully assessing and solving the environmental impacts caused by the proposed changes to the ISO. Through a full public hearing process the environmental impacts would be identified, analyzed and mitigated to assure the protection of the citizens of Contra Costa County. That protection can only be afforded with a full and complete environmental analysis of all the possible impacts of changes to the ISO and the identification of adequate mitigation measures. No meaningful attempt has been made to even identify all of the significant environmental impacts of the project, let alone mitigate those impacts. We urge the Board to follow the requirements of the California Environmental Quality Act, ("CEPA"), and require a full and complete environmental impact report to accomplish at least the following four things: 1. Adequately, clearly and completely identify all of the aspects and ramifications of the proposed changes to the ISO so that a meaningful environmental analysis may be prepared. Throughout this very brief process since introduction of the proposed changes to the ISO, it has been and remains constantly changing due to its ongoing consideration by the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. CEPA requires Michael Henn April lb, 2002 Page 9 a stable, concrete and meaningful identification of the aspects and ramifications of the proposed action so that all of the environmental impacts maybe assessed. 2. Accurately, meaningfully and honestly analyze all of the potential significant environmental impacts of the proposed action including, but not limited to, the very real impacts upon the earth, land use, air, water,plant and animal life, natural resources,jobs, housing, public services,energy and aesthetics and such other impacts that have not been adequately investigated and analyzed. Only when this is done can mitigation measures be designed and required. 3. Consider and impose meaningful and thoughtfully constructed mitigation measures at the time of the proposed action instead of leaving these things to be determined through future study and imposed at a later date. CEPA requires that mitigation measures be clearly and accurately identified and imposed at the time of approval, not left for nebulous review and approval at some time in the future. 4. Conduct a full and complete alternatives analysis,cataloging and examining all other possible actions appropriate for this subject matter. Without the preparation of an environmental impact report, an alternatives analysis will not be prepared and the weighing and ranking of alternatives based upon environmental impacts will not take place. The proposed changes to the ISO has moved towards approval with perhaps unprecedented speed. We are concerned that the haste to approve the proposed changes to the ISO has contributed to the County's failure to satisfy the obligations of CEPA. It is clear from an examination of the documents available so far that an environmental impact report, ("EIR"), should be prepared. The State CEPA Guidelines, ("The Guidelines"), are clear in requiring an EIR in a"marginal case where it is not clear whether there is substantial evidence that a project may have significant effects on the environment. Serious public controversy exists over the proposed changes to the ISO as evidenced by the attached declarations as well as those who will ultimately appear before the Board. Our office has attempted to closely review the proposed changes to the ISO within the time allowed. The conclusion is that the proposed changes to the ISO could have a significant effect on the environment. If the agency determine's that there is substantial evidence that any aspect of the action, either individually or cumulatively, may cause significant effects on the environment, then the lead agency shall prepare an EIR. As pointed out by The Guidelines, an initial study is necessary in order to provide the factual and analytical basis justifying the decision to not require an EIR, adopt a negative declaration or to focus an ETR on significant effects of an action. The lead agency then must provide a public review period for proposed action including the ability to review the initial study. Michael Henn April 16, 2002 Page 10 Furthermore, the County should consult with all responsible agencies and trustee agencies to determine their input of whether an EIR should be undertaken. It is unclear what attempt has been made to contact and involve other responsible agencies and trustee agencies to discuss their feelings, concerns and intents relative to the proposed changes to the ISO or what responses may have been received, if any. It is well established that if the lead agency, in this case the County of Contra Costa, finds that there is substantial evidence in the record before it that the action being considered for approval may have a significant affect on the environment,it must prepare an EIR. Thus, if the lead agency is presented with a"fair argument" supported by evidence in the record that a project and/or action may have a significant effect on the environment, it must prepare an EIR even though presented with other substantial evidence that the project will not have a significant effect. CEPA does not allow the agency to resolve evidentiary conflicts about the potential significance of an environmental effect. If the evidence is in conflict, the effect must be deemed potentially significant and an EIR must be prepared. Where it is unclear whether there is substantial evidence of a significant effect on the environment, an EIR must be prepared where either there is serious public controversy or there is disagreement between experts over the significance of and effect on the environment. Clearly, in the instant case,there is a serious,public controversy and expert testimony regarding the significance of the effects on the environment of the proposed changes to the ISO. It is only when there is no credible evidence that the action as proposed to be carried out may have a significant affect on the environment that the lead agency may properly determine that an environmental impact is not needed or prepare a negative declaration. Given the two extremely well qualified expert declarations of both Mr Golick(a city planner)and Mr. Sakarnoto (a license professional engineer experience in the design,management and construction of refineries)that an EIR is required for the proposed changes,there is no question but that an EIR is required It is not known whether the proposed action will have environmental impacts which are individually limited, but cumulatively considerable. ,An analysis of the cumulative impacts must be complete and address not only all existing and approved projects, but all reasonably foreseeable future projects. Lastly, the mitigation measures have not been identified to address all significant environmental effects. It should be noted that any attempt to defer environmental analysis to future studies is a clear violation of CEPA's requirement that environmental effects by analyzed and addressed at the earliest possible action stager leo meaningful effort has been made to identify the potential environmental impacts of the proposed changes to the ISO, mitigation measures also have not been adequately addressed. Michael Henn April 16, 2002 Page 11 In conclusion,we urge that the Community Development Department and Board of Supervisors satisfy the requirements of CEPA, and obtain a full and complete environmental impact report for the proposed changes to the ISO. Very truly yours IG DER CFA: o 1AW0 \CC iLTR\BOARDI.WPD ' ^ ' David Golkck Consulting Planner 424IDubhmCourt Concord, CA9452I October 25, 2O82 Michael Henn Planner Community Development Department Contra Costa County 651 Pine Street, North Wing, WmFloor Martinez, CA94553 RE: Proposed Amendments tothe Contra Costa County Industrial Safety Ordinance, Initial Study, County Fi|e#CP02-3O Dear Mike: I have been asked to review the Initial Study prepared for the proposed amendments to the Contra Costa County industrial Sofetv (]rdinance' My assessment i� divided into two sections,General Comments and Environmental Checklist Form Comments- ` V General Comments K The quality of the Initial Study needs to be improved in order to provide an empirical evaluation of the potential environmental impacts of the proposed amendments. The Initial Study needs input from individuals with technical expertise in the various aspects of the petrochemical and related fields. It is apparent that the Initial Study was written by land planners who are not exports in industrial 8ahmtv policies, regulations, and their potential environmental impacts. B. Contra Costa County used the generic checklist format for the Initial Study. As m stand-alone document, the checklist is appropriate for activities such as construction projects. Policy and ordinance pnoposm|s, such as the Industrial Safety Ordinance, are individually unique and require supplemental narrative analyses to provide a realistic and complete assessment of the potential impacts onthe environment. C. The Initial Study and proposed Negative Declaration dated October 7, 2002, does not mention the status of the earlier Initial Study and proposed Negative Declaration dated K4mroh 25, 2002. It is very confusing to have two Initial Studies and proposed Negative Declarations prepared and rnmdm available for public comment for the same project. Themanoernedpub||oneedmtmknowthe status of the March and October documents and their interrelationship. Because of the confusing relationship among documents, my comments regarding the Initial Studies include statements within this letter as well as Industrial Safety Ordinance .2 statements contained in my declaration provided to the County in April, 2002, regarding the March, 2002 Initial Study. D. The Table of Contents on page 2 refers to "Major Changes and Potential Impacts", but the project description on page 1 of the Environmental Checklist Form refers to "minor revision". First„ it is confusing for the reader to comprehend whether the County believes the changes are major or minor. Second, the Environmental Checklist should be a value neutral document. Item #8 on page 1 of the Environmental Checklist should say "proposed amendments to the Industrial Safety Ordinance rather than "minor revision to the...Industrial safety Ordinance". 11 Environmental Checklist Form Comments A- The Initial Study does not assess the potential environmental impacts of the proposed project, the ordinance amendment. The Initial Study does not evaluate any impacts. Technical sources cited provide general information regarding issues and situations which are not relevant or germane to the specific proposals contained in the proposed County ordinance amendment. In each subject area of the checklist, there should be a discussion of the potential environmental impacts, reasons why the potential impacts are significant or insignificant, and specific evaluations and/or specific relevant sources to support the conclusions. B. Summary statements contained in the Environmental Checklist should discuss potential impacts as stated in the above paragraph. Summary statements found in this Environmental Checklist primarily are boilerplate generalizations that are not related to the proposed project and an informative discussion of potential impacts. Summary statements prepared by County staff repeat truisms which are unrelated to the project, such as that new physical construction of facilities would have to comply with CEQA. C. Page 1, items 6 and 7: This is confusing. Inasmuch as the zoning must be consistent with the General Plan, the General Plan designation cannot be listed as "n.a." and the zoning designation listed as "any non-agricultural zoning district". Also,the above references zoning designation would erroneously lead a reader to believe that the proposed ordinance amendment applies to all residential, commercial, open space, and other zoning districts. D. Page 1, item 8: The project description should be value-free and not conclusive in nature. Statements such as "minor revision to the existing...Ordinance" and "improved contractor selection" are not appropriate. Italics added for emphasis. E. Page 1, item 9: The Initial Study lacks a description of "Surrounding Land Uses and Setting". The only explanation is "n.a.". CEQA Guidelines call for a description of surrounding land uses and the setting.. F. General outside sources are cited in the Summary section for each subject area. These sources are not specific to and do not directly relate to the .proposed Contra Costa County ordinance amendment. Also, it is apparent that conclusions reached in the Initial Study are based on no research, technical Industrial Safety Ordinance -3. reports, or studies specifically done for this project. Relevant cited sources should refer to specific page numbers for each subject area under assessment. However, that is not the case with this Initial Study. Mather than cite specific page numbers, this Initial Study cites page numbers in publications where the entire article or source may be found. Such citations are not helpful to the reviewer. CEQA Guidelines Section 15063(dX3)states, "A reference to another document should include, where appropriate, a citation to the page or pages where the information is found". The CEQA Guidelines Discussion under Section 15063 states, "...the individual conclusions reached by an Initial Study must be based on some evidence. Entries on a checklist or another form should be briefly explained to indicate the basis for determinations." (Leonoff v Monterey County Board of Supervisors(1990) 222 Cal. App. 3d 1337) G. Summary statements should be based on specific studies done for this project and accepted analytical reports completed by experts in the field of industrial safety and relevant to this project. No such studies and reports are documented in this Initial Study. The summary statements in this Initial Study contain unsubstantiated statements such as that under the proposed ordinance amendment the level of employee training would be improved and the contractor selection process would be improved. CEQA Guidelines Section 15063(d)(3) states, "an Initial Study shall contain in brief form—entries on a checklist or other form...briefly explained to indicate that there is some evidence to support the entries". This Initial Study does not comply with Section 15063(d)(3). H. In this Initial Study, summary statements often use the clause, "from an analysis of the proposed ordinance and the industrial facilities to which the training regulations would apply, there is no substantial evidence..." However, the reader is never advised where that analysis may be read and reviewed. In Sundstrom v. Mendocino(1988) 202 Cal. App. 3d 296, the court said an agency must .provide the information it used to reach its conclusions, and that a checklist unsupported by data and facts is not sufficient for an adequate Initial Study. I. Wage 4, Agricultural Resources Summary: The Summary is not correct. Agricultural resources potentially could be impacted whether or not, "the proposed changes would...apply to properties in agricultural zoning or use". The Initial Study should recognize that industrial uses in one zoning district can impact agricultural uses in another zoning district. J. Pages 4-5, Air Quality: There could be a significant impact on air quality or other environmental factors if an operational disruption occurs because of an inadequate number of workers or inadequately trained workers. This potential impact is not addressed in the Initial Study. K. Page 5, Air Quality Summary: The last sentence states„ "The probable safety impacts resulting from improved worker training would be a beneficial impact of the changes." It has not been demonstrated in the Initial Study that the proposed changes to worker training would be an improvement. No research has been provided that past industrial accidents have been the result of poor worker training, and that proposed worker training modifications would reduce the possibility of such accidents in the future. The sources cited do not relate to the issues, Industrial Safety ordinance .4- L. 4L. Pages 6.7, Biological Resources Summary: No relevant sources are offered for the last sentence which states, "The impacts from increased worker training and the selection of contractors with better safety records would be beneficial to the biologic resources of the County because of a reasonable probability of a lower accident rate and hazardous releases". This is an unsubstantiated comment,not a statement of fact_ M. Page 7, Cultural Resources Summary: The first sentence says there will be "no effect on cultural resources". The last sentence says impacts "would be beneficial to any affected cultural resources". This _paragraph is internally inconsistent and confusing. N. Page 8, Geology and Soils Summary: I do not understand the last sentence of the first paragraph, which states, "The changes would improve the level of employee training, and improve the contractor selection process so that stationary sources must consider the contractor's safety record". Perhaps part of the thought was omitted. Again, this Summary contains the unsubstantiated statement that "improved worker training" would reduce "the frequency of accidental spills and releases". The proposed ordinance amendment would modify worker training programs. Submitted data does not conclude that worker training would be improved. Also, it is not a proven fact that there is a direct correlation between worker training and accidents. 0. Page 10, Hazards and Hazardous Materials Summary: Statements such as "use of better trained workers" would reduce hazardous incidents presupposes that past accidents have been caused by workers who were not well trained. No documentation is presented to substantiate this comment. Source#9 used in the Initial Study and cited as a source document for the Hazards and Hazardous Materials section does not support the conclusions reached in the Initial Study. Source #9 concludes that worker safety is enhanced by close supervision by company management, not by safety training. The proposed amendments to the County ordinance do not address factors cited in source #9 to improve worker safety and reduce the potential for accidents. According to source #9, as well as source #8, changes to federal and state laws would be needed to increase safety. These changes cannot be accomplished by a county ordinance amendment, no matter how well meaning that proposed county regulation may be. Page 87 of source #8 discusses ways to improve occupational safety. All discussed possible improvements are dependent on the federal government and an expanded role for the Occupational Safety and Health Administration (OSHA). Source #6, Causes of Underreporting of Job Injuries,, provides interesting information regarding injuries. However, source #6 is unrelated to the Initial Study topic of Hazards and Hazardous Materials, and it provides no source documentation for any of the questions or answers on pages 9 and 10 of the Initial Study. P. Page 16, Transportation/Traffic Summary: One of the cited sources is #5, a report by James Rebitzer, Ph.D. This source does not discuss transportation or traffic related issues. Q. Page 18, Mandatory Findings of Significance Summary: Nowhere in the document is there an analysis of the availability of a labor supply to do the required work. The cited sources do not provide a rationale for the "no Industrial Safety ordinance .5 impact" determinations, nor do they provide substantiation for conclusions reached in the Summary section. Sources have to be reasonably related to the proposed project and specific to the project. They should have.page citations that address checklist questions and issues, not citations for the whole article being used as a source. R. Training and Accidents: Aside from the information discussed above, it is interesting to note that source ## 5 concludes that training by host plants and close supervision by host plant management results in improved worker safety. The proposed ordinance amendment does not address training and supervision by host plant management. Source#11 questions the validity of available statistics regarding occupational injuries and the reasons for underreporting of injuries and illnesses. Based on factors discussed in this article, the real or correct relationship between injuries by contract workers versus company employees needs additional research not cited in the Initial Study. Source #11 questions the validity of assumed relationships between injuries received by direct-hire or company workers and contract workers. 1 am aware of only one relevant study conducted in Contra Costa County which evaluated major incidents at refineries. This study, performed by the Contra Costa County Health Services Department, analyzed 27 major incidents at refineries located in this county. The study concluded that 25 of the 27 incidents did not involve contract workers, and none of the 27 incidents were caused by contract workers. Even based on the limited source data cited in the Initial Study, issues regarding worker training and occupational injuries are considerably more complex than stated in the initial Study Summaries. Some of the issues that need to be addressed include the source of the training, the type of training to be provided, and training needs of long term versus short term employees. After reading the proposed County ordinance amendment, the Initial Study, and sources cited in the Initial Study, I conclude that County staff has prepared an inadequate environmental document. The Initial Study does not address the complex environmental issues regarding training and safety. Many conclusions are not based on fact, and are contradicted by cited sources. The CEQA Guidelines require that conclusions be substantiated in the Initial Study, but they are not verified in this Initial Study. Sincerely yours, David Golick Consulting Planner ANDERSEN, BONNIFIELD & CtiT'1 L' ' ' A ATTORNEYS AT LAW rs.n r nrti f r {�1y TELEPHONE:(925)802-1400 ONE CORPORATE CENTRE �' `' C � hPSIMILE:(925)825-0143 1320 WILLOW PASS ROAD-SUITE 500 CONCORD,CALIFORNIA 94520-5244 HAND DELIVERED Michael Henn Community Development Department Contra Costa County 651 Pine Street,North Wing, 4th Floor Martinez, California 94553 Re: Proposed Amendments to Industrial Safety Ordinance of the Contra Costa County Code County File#CP02-30 Dear Mr. Henn: Our law office represents a number of concerned residents and businesses of Contra Costa County. We appreciate the opportunity, albeit upon abbreviated notice, to review the proposed amendments to the Industrial Safety Ordinance {"ISO")as set forth in the Notice of Public Review and Intent to Adopt a Proposed Negative Declaration dated March 25,2002.' We have been asked to submit this letter setting forth our comments on the proposed changes and offering into the administrative record the enclosed substantial evidence of impacts that have not been adequately investigated, analyzed or mitigated. Accordingly, the proposed negative declaration is improper since under these circumstances the California Environmental Quality Act ("CEQA") requires an Environmental Impact Report to be prepared. Submitted with our comments are two expertdeclarations in opposition to the proposed negative declaration. The first expert,Dave Golick,has been a professional city planner in Contra Costa County for 29 years; having been in charge of the Planning Division of the City of Concord for ten years. He has prepared or reviewed over a thousand Initial Studies and Environmental Impact Reports under CEQA. Mr. Golick's declaration makes clear that the Initial Report grossly fails to contain an adequate basis for a negative declaration and that an ETR is required. Our second expert, John M. Sakamoto, is a professional licensed engineer and Senior Vice President with Eichleay Engineering Inc. of California. Eichleay is one of-the nation's largest engineering firms. Mr. ''We question whether the proposed negative.declaration is premature since your Notice states these changes are still under review by the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. Michael Henn April 16, 2002 Page 2 Sakamoto has over 20 years experience in petrochemical and heavy industrial facilities; including extensive experience in the management, design, and construction of major petrochemical and refinery facilities. Mr. Sakamoto is thoroughly familiar with the labor markets involved and the significant reduction in the labor base that the proposed apprenticeship changes will have on that limited supply of skilled labor. That reduction will,in turn, adversely impact safety at refineries in the areas of risk of injury, property damage and offsite releases. He also points out the complete absence of supporting data for these changes and the need for an Environmental Impact Report. It is important to keep in mind that there are thousands of skilled workers from a limited labor pool who have the necessary skills and experience to work on refinery projects. This is specialized work requiring skills and abilities not required on the average construction project. Any adverse effect on the labor force will have direct and indirect impacts on the environment. While the proposed changes pertaining to imposition of apprenticeship programs ostensibly seek to contribute to the safe operation of the refinery facilities in this county, their real effect will be to =- drastically reduce the limited workforce that has the requisite skills to safely operate the facilities. Thus, instead of increasing safety,they will have the exact opposite effect of decreasing safety as well as adversely impact the environment. The changes are ill-considered and an EIR would certainly provide the data demonstrating the severe impacts these changes would have if implemented. Our clients believe that the potential environmental impacts resulting from the enactment of the proposed changes to the Industrial Safety Ordinance have not only not been adequately addressed but have not been addressed at all. Given the seriousness of the potential adverse impacts on the environment,the County's failure to require an EIR under these circumstances is cause for alarm. 1. The Failure to Cite Supporting Facts or Studies Renders the Initial Study Defective Even a cursory review of the Initial Study and Proposed Negative Declaration ("Initial Study") reveals that the Initial Study was not prepared in conformance with the requirements of CEQA. There is, practically speaking, a complete failure to provide citation to supporting documentation of any kind to the conclusions drawn. a. There is a complete failure to cite supporting evidence regarding the proposed apprenticeship changes As to the apprenticeship program changes,there is absolutely no supporting documentation of any kind whatsoever cited. Under subsection(4)to Section II. Project Description of the Initial Study no data or studies are cited whatsoever.This failure alone causes the Initial Study to be grossly defective. All that is contained in that subsection are completely unsupported conclusions. Michael Henn April 16, 2002 Page 3 Furthermore,those`conclusions'are completely speculative. The statement that a project"maybe better than the existing training programs"adds nothing to the analysis. The project may be worse just as easily. There is nothing to document the claim that the proposed apprenticeship programs would be better or worse that present training Thus the conclusion that the project"can decrease the potential for a major chemical accident or release"is no more probable than that it could just as easily increase the potential for a major chemical accident or release. In fact,there is believed to be statistical data available that would demonstrate that the safety record of graduates from apprenticeship programs is worse than that of those contractors who rely on in- house training of their workforce. In any event, none of this has been considered. Instead, completely unfounded conclusions are made, which cannot serve as the basis for a negative declaration. [Golick and Sakamoto declarations.] b. No Meaningful Evidence Is Cited Supporting The Checklist Questions The conclusions reached in the Initial Study are based on the`answers'to the Environmental Checklist Form attached to the Initial Study. However,while the form has been completed,in part, it has not been completed with the IeveI of detail and analysis required by CEQA. It is simply not enough to complete the checklist questions by merely checking a box. Brief,but specific reference to supporting facts and documentation needs to be provided. The Initial Study contains no such references. The sole`attempt'to reference supporting facts is the statement"(All Source#4)in response to a few of the questions on the checklist. On page 3 of the Environmental Checklist under the heading "SOURCES" four items are listed. Three of them have nothing to do with the project specifics as they are simply the Contra Costa Resource Mapping System,the County General Plan and General Plan and Zoning Maps. The Fourth is"Project Description." The Project Description is set forth under heading"II.Project Description"of the Initial Study. It is improper to refer to the Project Description as supporting documentation. [See Golick Declaration,par. 15, 4.11-121 All the Project Description contains is the recommendations as to what changes should be made,without any supporting facts or data.No real data or studies are cited whatsoever upon which a person could draw conclusions. CEQA guidelines,Appendix G,"Evaluation of Environmental Impacts", item 2 states"All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level,indirect as well as direct,and construction as well as operational impacts." Moreover,"[t]he explanation of each issue should identify: a)the significance criteria or threshold,if any,used to evaluate each question;and b)the mitigation measure identified, if any,to reduce the impact to less than significant"[Id., item 9]"Lead agencies are encourage to incorporate into the checklist references to information sources for potential impacts(e.g. general plans,zoning Michael Henn April 16, 2002 Page 4 ordinances). Reference to a previously prepared or outside documents should, where appropriate, include a reference to the page or pages where the statement is substantiated."[Id.,item 6]"A source list should be attached, and other sources used or individuals contacted should be cited in the discussion." [Id., item 7] 14 California Code of Regulations Section 15063 sets forth the guidelines for preparation of an Initial Study. Subsection(a)(3)states"An initial study may rely upon expert opinion support by facts,technical studies or other substantial evidence to document its findings." Subsection(C)(5) states that the purpose of an Initial Study are to"Provide documentation of the factual basis for the finding in a Negative Declaration that a project will not have a significant effect on the environment. Subsection(D)(3)states that an Initial Study shall contain"an identification of the environmental effects by use of a checklist, matrix,or other method, provided that entries on a checklist or other form are briefly explained to indicate that there is some evidence to support the entries. The brief explanation may be either through a narrative or a reference to another information source such as an attached map, photographs, or an earlier EIR or negative declaration. A reference to another document should include,where appropriate,a citation to the page or pages where the information is found." In the Discussion section following the foregoing guidelines its states "This section also clarifies that the individual conclusions reached by an initial study must be based on some evidence. Entries on a checklist or other form should be briefly explained to indicate the basis for the determinations. These explanations are not intended to be as detailed as an EIR. (Leonoff V. Monterey County Board of Supervisors(1990)222 Cal.App.3d 1337) What is patently obvious from a review of the Checklist responses is that the Initial Study has completely failed to support its recommendation for a negative declaration. 2. . The Initial Study Completely Fails to List Any Beneficial Impacts The Initial Study States on page 4 under heading B.CEQA Process,that"Where beneficial impacts are likely, this initial study so indicates:" Remarkably, no impacts of any kind are noted, beneficial or adverse. An initial study must consider all impacts of a project. Sundstrom v. Mendocino(1988)202 Cal.App. 3d 296 It was incumbent on the authors of the Initial Study to list both potential beneficial impacts as well as adverse impacts. Presumably, there are no beneficial impacts to the project, which suggests the project is without merit. [Golick declaration, par. 546, 2.1122] Michael Henn April 16,2002 Page 5 3. The Initial Study Incorrectly Describes the Apprenticeship Program Language Contained in the Proposed Amendments and Is Substantively Different From the Actual Language Proposed On page 9 of the Initial Study its states that in the event a contractor had not executed an apprenticeship agreement within the first three years.for each apprenticeable occupation it could alternatively"have at least 50%of employees be journey level in each apprenticeable occupation." The actual language of the proposed amendments under Section(C)(3)(a) states: "or, (ii) employ a journey level workforce in which 50%of the workers in each apprenticeable occupation employed by that contractor at the Stationary Source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council." There is a significant difference between having to have 50%of the employees journeymen,and the language of the proposed change which is that all workers have to be journeyman,but only 50%need be from an apprentice program. There is a substantial inconsistency between the effect of the statute as described and the actual language proposed.The ambiguity created precludes effective public comment.[Golick declaration, par. 8, 2:226-28] 4. The County Has Completely Failed to Evaluate Achievement of Short-Term Environmental Goals to the Disadvantage of Long-Term Environmental Goals Which is Mandated By Statute Section 21083 of the California Public Resources Code provides that in determining whether a project may have a"significant effect on the environment" a "significant effect" will be found under subsection (a) if "A proposed project has the potential to degrade the quality of the environment,curtail the range of the environment,or to achieve short-term,to the disadvantage of long-term, environmental goals." This is a mandatory requirement. However,the Checklist form used in the Initial Study, under Section XVII. Mandatory Findings of Significance fails to include any consideration of this issue; and the Initial Study fails to address it anywhere else. If, in fact, achievement of short-term goals in to the disadvantage of long-term environmental goals an EIR must be obtained. Until there is due consideration given this issue,the Initial Study is'defective. 5. The Proposed Apprenticeship Requirements Will Severely Impact the Available Labor Force Adversely Impacting Safe Operation of the Refineries,and Increasing Risk of Accidents Resulting in Environmental Harm As set forth in the Declaration of Mr. Sakamoto, there is a limited skilled labor force available to perform new construction and/or maintenance and repair of the four refineries in Contra Costa County. Imposition of apprenticeship program requirements will immediately remove a substantial portion of that labor force from eligibility to work at the refineries. As Mr. Sakamoto Michael Henn April 16, 2002 Page 6 concludes, based on his extensive experience in design, management and construction of petrochemical facilities,this labor shortfall may result in decreased safety at the refineries including increased risk of accidents resulting in adverse environmental impacts.[Sakamoto declaration,par. 5-6,2:13-21] 6. Many Other Adverse Impacts Were Not Given Due Consideration in the Initial Study As previously indicated,if substantial evidence shows that a proposed action may have even a single unmitigated adverse environmental effect, a full EIR must be prepared. It is inadequate to cite to the project description (which omits supporting data of any kind) in support of a negative declaration Moreover, since the parameters of the proposed changes to the ISO are so fluid and unsettled,its potential adverse environmental effects cannot adequately be analyzed. Nevertheless, it is clear from a review of the proposed changes to the ISO as well as common sense, that the proposed changes to the ISO will have numerous adverse environmental impacts. The nature of these impacts will be briefly discussed below. Also many of these are addressed by Mr. Golick in his declaration. [Golick declaration,par. 17-24, 2:19-5:28] It is important to note that there are thousands of skilled workers who work at the Contra Costa refineries.If their ability to work is impaired or precluded by the apprenticeship changes there will be a host of adverse impacts directly and indirectly affecting the environment. Chief among these would be increased impact on traffic, and the probable decrease in production of refinery products. Many other areas would be affected as well. 1. Land Use. The proposed changes to the ISO do not address or analyze whether it impacts changes in land use nor does it explain why possible change in land use is not a significant environmental impact. Furthermore,the proposed changes to the ISO is likely to impact the location, distribution, density and/or growth rate of the human population in the area, including temporary increased occupancy in the subject areas. There is.likely to be substantial changes in the number of jobs and type of employment in the subject area-due to the proposed changes to the ISO. It is possible that the proposed changes to the ISO will result in development outside the subject area which might have adverse environmental impacts. 2. Consistency with Other Ordinances and Policies. There has been no determination that the proposed changes to the ISO is consistent with other federal,state and local ordinances and policies. Nowhere is there any analysis of other statutes, laws and ordinances as they relate to the proposed changes to the ISO and such an analysis must be made. Yet the proposed changes regarding apprenticeship programs arguably seek to unlawfully preempt applicable state and local laws which are controlling. Michael Henn April 16, 2002 Page 7 3. Earth. There has been no examination of whether the proposed changes to the ISO will result in unstable earth conditions or changes in the geologic substructure. Throughout Contra Costa County there is evidence of diverse and unstable soil and ground water conditions and potentially significant seismic activity areas,all of which should require detailed analysis. 4. Air. It is likely the proposed changes to the ISO will cause substantial air emissions and deterioration of air quality because of delays in maintenance and repair. Additionally, no consideration is given as to whether the proposed changes to the ISO will impact the available labor pool to such an extent that repair and maintenance'of the industrial facilities cannot be readily undertaken. 5. )Vater. No investigation has been undertaken to determine whether the proposed changes to the ISO and resulting time delays will impact ground water. 6. Plant Life. It is unclear whether.the proposed changes to the ISO will impact the numbers of any unique,rare and dangerous species of plant or animal habitat. 7. Animal Life. It is not known whether the Proposed changes to the ISO will have any potential environmental effect on animal life.Adjacent to the refineries are open lands,wetlands or other habitat areas of protected animals such as the red leg frog, Alameda whipsnake, tiger salamander and burrowing owls. A reduction in safety resulting in offsite releases will directly impact these animals. 8. Noise. There has been no determination whether there is a potential environmental effect relating to noise emanating from the proposed changes to the ISO. 9. Natural Resources. It is not known whether the proposed changes to the ISO will increase the use of fuel and water,and whether such increase will be insignificant or not. 10. Risk of Upset. There is no indication of whether the proposed changes to the ISO has seismic ramifications. 11. Jobs and Housing. It is not known whether the proposed action will increase or decrease jobs and whether it will bring new people to the general area. 12. Public Services. The effects of the proposed changes to the ISO upon public services including fire and protection is not known at this time. Michael Henn April 16, 2002 Page 8 13. Ener It is not known whether the proposed action affects substantial fuel and energy use. 14. Aesthetics. It has not been determined whether the proposed changes to the ISO will have a significant aesthetic effect on the environment. 15. Mineral Resources: Gasoline, jet fuel, heating oil, and all other petrochemical products produced at the refineries will likely be adversely impacted since inadequate labor resulting from the apprenticeship changes will slow new construction, maintenance and repair, increase downtime due to accidents and generally result in lower production of these products 16. Transportation: Significant adverse impacts on traffic can be anticipated due to the apprenticeship changes. A significant part of the limited skilled workforce will be precluded from working at the refineries. These workers will need to travel greater distances to find replacement work. At the same time whatever few workers from outside the area may qualify to work at the refineries will have to travel from outside the county adding significantly to the numbers of cars and trucks on our roadways. AN ENVIRONMENTAL IMPACT REPORT IS NECESSARY TO PROPERLY EVALUATE THE POTENTIAL ADVERSE IMPACTS TO THE ENVIRONMENT Our clients believe that full public hearings are necessary regarding legislation where great public concern is expressed. The environmental report process would provide such public hearings and would be sensitive to fully assessing and:solving the environmental impacts caused by the proposed changes to the ISO. Through a full public hearing process the environmental impacts would be identified, analyzed and mitigated to assure the protection of the citizens of Contra Costa County. That protection can only be afforded with a full and complete environmental analysis of all the possible impacts of the changes to the ISO and the identification of adequate mitigation measures. No meaningful attempt has been made to even identify all of the significant environmental impacts of the project, let alone mitigate those impacts. We urge the Board to follow the requirements of the California Environmental Quality Act, ("CEPA"), and require a full and complete environmental impact report to accomplish at least the following four things: I. Adequately,clearly and completely identify all of the aspects and ramifications of the proposed changes to the ISO so that a meaningful environmental analysis may be prepared. Throughout this very brief process since introduction of the proposed changes to the ISO, it has been and remains constantly changing due to its ongoing consideration by the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. CEPA requires r r Michael Kenn April 16, 2002 Page 9 a stable, concrete and meaningful identification of the aspects and ramifications of the proposed action so that all of the environmental impacts may be assessed. 2. Accurately, meaningfully and honestly analyze all of the potential significant environmental impacts of the proposed action including,but not limited to, the very real impacts upon the earth, land use, air,water, plant and animal life,natural resources,jobs,housing,public services, energy and aesthetics and such other impacts that have not been adequately investigated and analyzed. Only when this is done can mitigation measures be designed and required. 3. Consider and impose meaningful and thoughtfully constructed mitigation measures at the time of the proposed action instead of leaving these things to be determined through future study and imposed at a later date. CEPA requires that mitigation measures be clearly and accurately identified and imposed at the time of approval, not left for nebulous review and approval at some time in the future. 4. Conduct a full and complete alternatives analysis, cataloging and examining all other possible actions appropriate for this subject matter. Without the preparation of an environmental impact report, an alternatives analysis will not be prepared and the weighing and ranking of alternatives based upon environmental impacts will not take place. The proposed changes to the ISO has moved towards approval with perhaps unprecedented speed. We are concerned that the haste to approve the proposed changes to the ISO has contributed to the County's failure to satisfy the obligations of CEPA. It is clear from an examination of the documents available so far that an environmental impact report, ("EIR"), should be prepared. The State CEPA Guidelines, ("The Guidelines"),are clear in requiring an EIR in a"marginal case where it is not clear whether there is substantial evidence that a project may have significant effects on the environment. Serious public controversy exists over the proposed changes to the ISO as evidenced by the attached declarations as well as those who will ultimately appear before the Board. Our office has attempted to closely review the proposed changes to the ISO within the time allowed. The conclusion is that the proposed changes to the ISO could have a significant effect on the environment. If the agency determine's that there is substantial evidence that any aspect of the action,either individually or cumulatively, may cause significant effects on the environment,then the lead agency shall prepare do EIR. As pointed out by The Guidelines, an initial study is necessary in order to provide the factual and analytical basis justifying the decision to not require an EIR, adopt a negative declaration or to focus an EIR on significant effects of an action. The lead agency then must provide a public review period for proposed action including the ability to review the initial study. y Michael Henn April 16, 2002 Page 10 Furthermore,the County should consult with all responsible agencies and trustee agencies to determine their input of whether an EIR should be undertaken. It is unclear what attempt has been made to contact and involve other responsible agencies and trustee agencies to discuss their feelings, concerns and intents relative to the proposed changes to the ISO or what responses may have been received, if any. It is well established that if the lead agency, in this case the County of Contra Costa, finds that there is substantial evidence in the record before it that the action being considered for approval may have a significant affect on the environment, it must prepare an EIR. Thus, if the lead agency is presented with a"fair argument" supported by evidence in the record that a project and/or action may have a significant effect on the environment, it must prepare an EIR even though presented with other substantial evidence that the project will not have a significant effect. CEPA does not allow the agency to resolve evidentiary conflicts about the potential significance of an environmental effect. If the evidence is in conflict,the effect must be deemed potentially significant and an EIR must be prepared. Where it is unclear whether there is substantial evidence of a significant effect on the environment, an EIR must be prepared where either there is serious public controversy or there is disagreement between experts over the significance of and effect on the environment. Clearly, in the instant case, there is a serious,public controversy and expert testimony regarding the significance of the effects on the environment of the proposed changes to the ISO. It is only when there is no credible evidence that the action as proposed to be carried out may have a significant affect on the environment that the lead agency may properly determine that an environmental impact is not needed or prepare a negative declaration. Given the two extremely well qualified expert declarations of both Mr Golick(a city planner)and Mr. Sakamoto(a license professional engineer experience in the design, management and construction of refineries)that an EIR is required for the proposed changes,there is no question but that an EIR is required It is not known whether the proposed action will have environmental impacts which are individually limited, but cumulatively considerable. °An analysis of the cumulative impacts must be complete and address not only all existing and approved projects, but all reasonably foreseeable future projects. Lastly, the mitigation measures have not been identified to address all significant environmental effects. It should be noted that any attempt to defer environmental analysis to future studies is a clear violation of CEPA's requirement that environmental effects by analyzed and addressed at the earliest possible action stage:No meaningful effort has been made to identify the potential environmental impacts of the proposed changes to the ISO, mitigation measures also have not been adequately addressed. Michael Henn April 16,2002 Page 11 In conclusion, we urge that the Community Development Department and Board of Supervisors satisfy the requirements of CEPA, and obtain a full and complete environmental impact report for the proposed changes to the ISO. Very truly yours G DERSEN CFA: o 1AWO \CC \LTR\BOARDI.WP'D Craig F. Andersen { nA C fj 1 N. Lee Ormasa 2 Andersen, Bonnifield&Cottle 02 AFR 16 PM 4: 4 3 One Corporate Center u�,�; ;:r r ,,t rr!�r�P1E1�r Utf'T. 3 1320 Willow Pass Road, Suite 500 4 Concord, California 94520 Telephone (925) 602-1400 5 Facsimile (925) 825-0143 6 7 s 9 CONTRA.COSTA COUNTY 10 COMMUNITY DEVELOPMENT DEPARTMENT 11 12 13 IN RE COUNTY FILE#CP02-03 14 15 PROPOSED CHANGES TO THE DECLARATION OF INDUSTRIAL SAFETY ORDINANCE DAVID GOLICK IN OPPOSITION 16 TO PROPOSED NEGATIVE 17 DECLARATION 1s 19 20 1, David Golick, declare: 21 1. I have been a professional planner for 36 years. I have personal knowledge of the 22 matters set forth herein and could and would competently testify thereto if called upon as a witness 23 1 have practiced city planning in Contra Costa County for 29 years. During that time period I was i 24 charge of the Planning Division for the City of Concord, the largest city in Contra Costa County, fo 25 ten years. I was Senior Planner and Principal Planner for Concord for about 5 years. 26 2. During my career of 29 years in California, I have either prepared or reviewed 27 approximately 1,000 Initial Studies and Environmental Impact Reports. 28 1 3. During the course of my career I have become familiar with and have an in-dept 2 working knowledge of the California Environmental Quality Act Statutes and Guidelines. I have 3 coached subordinate employees regarding CEQA requirements and have addressed CEQA issues a 4 conferences of the California Chapter of the American Planning Association in Newport Beach an 5 Sacramento. 6 4. I have reviewed the Initial Study and Proposed Negative Declaration on the Propose 7 Changes to the Industrial Safety Ordinance which was prepared by the Contra Costa Count 8 Community Development Department and dated March 25, 2002. It is my opinion that this 9 document does not follow State requirements and draws conclusions which lack substance and are to not based on presented factual evidence. 11 5. The Initial Study does not follow the process stated on page 4, titled CEQA Process 12 Page 4, paragraph 4 states, "Where beneficial impacts are likely, this initial study so indicates." 13 find no assessment of beneficial impacts in the initial study, so I assume that the proposed projec 14 has no beneficial impacts. 15 6. Page 4, paragraph 5, line 7 states "...the analysis will determine whether the 16 potential impacts would be positive or negative. If the impacts could be negative, the analysis 17 would then determine whether there is substantial evidence that a particular aspect of the project 18 may cause a substantial or potentially substantial adverse impact on the environment. Aspects o 19 the project that clearly could not cause a significant adverse impact will not be evaluated further.' 20 The initial study does not contain an assessment, or even a list, of potential beneficial or adverse 21 impacts. Based on paragraph 4 and 5 of page 4, it could be concluded that the proposed project has 22 no beneficial nor adverse impacts. 23 7. Recommendation 5 on page 6 addresses the potential "increase [to] the overall risk o 24 a Major Chemical Accident or Release so that all life-cycle implications of changing a process t 25 implement ISSs need to be carefully reviewed..." This issue is not addressed in the initial study. 26 8. On page 9, the description of Training and Apprenticeship Programs is substantive) 27 different from the proposed amendments. 28 2 1 9. The second paragraph under Training and Apprenticeship Programs lacks merit 2 There is no discussion of the impacts of the proposed changes. The paragraph states that th 3 proposed training program may be better than the existing one. The last sentence of the paragrap 4 mentions "improved training". There is no assessment presented which compares existing an 5 proposed training; no study was done to compare the results of the existing and proposed training G programs. 7 10. Page 9, Summary Conclusions, states, "County staff finds no substantial evidence o 8 potential significant impacts to the environment..." There is no basis for this conclusion. No dat 9 is presented. No studies are addressed. 10 11. Page 10 offers a number of conclusions which have no basis in fact. The firs 11 paragraph states, "... these changes, in addition to being desirable in and of themselves, would have 12 no discernable adverse effect on the environment because they would add clearer safety review 13 processes..." The second paragraph states, "The environmental effects of this change [Health 14 Services Department] would be modest but clearly beneficial." The environmental impacts of then Is proposed changes are not studied and conclusions of studies are not presented in the initial study. 16 There is no basis for the conclusions. 17 12. Page 1 of the Environmental Checklist Form, Environmental Factors Potential) 18 ' Affected, conflicts with the first 10 pages of the attached document, especially paragraph 4 and 5 0 19 page 4. Also, the purpose of this checklist is to list potentially significant impacts. It i 20 inconceivable to have one potential significant impact titled "No Significant Impacts Identified", a 21 appears on page 1. Finally, no impacts are checked, not even "No Significant Impacts Identified.' 22 Not checking any category only leads one to assume that this project has neither beneficial no 23 adverse impacts. Such a conclusion would contradict the County's own conclusions on page 9 an 24 10 of the attached study. 25 13. Based on the sources presented, the conclusion reached in answering the initial stud 26 questions are based on no research, technical reports, or studies done for this project. 27 28 3 CEQA Guidelines, Section 15063 (B) "An initial study may rely upon expert opinion 1 supported by facts, technical studies or other substantial evidence to document its findings. " 2 3 14. Four sources are listed on page 3 of the checklist. No page numbers are offers 4 which is contrary to CEQA. 5 6 CEQA Guidelines, Section 15063 (d) (3) "...entries on a checklist...are [to be] briefly 7 explained to indicate that there is some evidence to support the entries. The brie 8 explanation may be either through a narrative or a reference to another information sours such as an attached map, photographs, or an earlier EIR or negative declaration. 9 reference to another document should include, where appropriate, a citation to the page o 10 pages where the information is found." 11 15. The project description cannot be used as a source. A description is not an analytical 12 assessment from which a person can study and draw conclusions. 13 14 16. The explanations of the answers do not meet CEQA requirements. Preferably each 15 question, and definitely each topic area, must have an explanation of the environmental issues 16 environmental impacts and, if necessary, environmental mitigation measures. Only three plants are 17 affected by the proposed project, yet there are no site specific studies. 18 19 17. The sources cited to support the conclusion of"no impact"do not address the issues 20 For example, under I. Aesthetics, the cited source is the project description. The project descriptio 21 does not mention aesthetics. Aesthetics should address issues such as physical modifications whit 22 could affect aesthetic considerations, new sources of light or glare resulting from the project, site 23 24 near county or city designated scenic roads or vistas, etc. 25 18. An air quality analysis should assess the range of possible changes that could b 26 forthcoming under the proposal and address possible air quality impacts. The assessment should 27 28 4 include impacts on the growing county population. The project description is erroneously used as r 2 the citation, or rationale, for all"No Impact"answers. 3 19. The proposal has potential long-term detrimental impacts on IV. Biologics 4 Resources, yet the project description is used as the citation for "No Impact" answers. There are 5 rare and endangered species near some of the industrial plants. Although the proposed regulation 6 7 can prolong the life of existing plants,there is no risk assessment regarding biological resources. 8 20. No assessment has been offered regarding V. Cultural Resources. Are any of the 9 industries near such resources? The project description should not be cited as a technical source o 10 information. 11 12 21. Many of the Summary statements, such as the one for VI Geology and Soils, are not 13 related to the questions asked on the checklist form. This section should address, among othe 14 topics, the location of fault traces relative to plant sites and whether implementation of the projec 15 would expose more people to geologic and soil impacts. 16 17 22. VII. Hazards and Hazardous Materials is a major topic of Countywide concern. Th 18 only citation for the "No Impact" answers is the project description. This section deserves 19 detailed, scientific study of the exposure of additional workers and the population at-large to then 20 hazards. 21 22 23. The Hydrology and Water Quality section, the band Use and Planning section, plus 23 the Noise section are based on no factual evidence. 24 24. Section XII Population and Housing does not address the fact that implementation o 25 the proposed project will require additional workers. Because of the lack of a sufficient supply o 26 27 skilled craftspeople in the County, workers will have to be brought here from other, unknow 28 places. There may be housing impacts and commute traffic impacts which should be addressed. 5 25. There is no discussion of issues under Mandatory Findings of Significance. Unde 2 a), the initial study does not address the environmental setting of the three plants or any site specific 3 impacts. The initial study does not address habitats of rare and endangered species. The project 4 does have the potential to degrade the quality of the environment and "Potentially Significant 5 Impact" should be checked. 6 7 26. Questions b) and c) of the Mandatory Findings of Significance should discuss the S impacts of more expensive fuels and resulting consequences. The number of available technics people to implement the project may not be adequate. Safety impacts could result if there are no 10 enough qualified craftspeople. The project does have the potential to degrade the quality of the 11 12 environment and"Potentially Significant Impact"should be checked. 13 27. The initial study is based on no factual evidence, no specific studies, and no expert 14 opinions and analyses. I do not believe that the sources cited in the checklist support the conclusion 15 that the project will not have a significant environmental impact. Based on Section 15065 of the 16 17 Guidelines, an EIR should be required. 18 I declare under penalty of perjury under the laws of the State of California that the foregoing 19 is true and correct. za Executed this 1 , day of April, 2002 at Concord, California. 21 22 � y 23 DAVID GOLICK 24 25 26 27 28 6 Craig F. Andersen R +t C 0 S 3 t, 1 N. Lee Ormasa 02 UP 106 Phi 4: 4 3 2 Andersen, Bonnifield& Cottle One Corporate Center `r u: 1'f u ti LcNIENT MUT. 3 1320 Willow Pass Road, Suite 500 4 Concord, California 94520 Telephone (925) 602-1400 5 Facsimile (925) 825-0143 6 7 8 CONTRA COSTA COUNTY 9 COMMUNITY DEVELOPMENT DEPARTMENT 10 11 lz _ IN RE COUNTY FILE#CP02-03 13 PROPOSED CHANCES TO THE DECLARATION OF 14 INDUSTRIAL SAFETY ORDINANCE JOHN M. SAK.AMOTO, P.E. 15 OPPOSING PROPOSED NEGATIVE DECLARATION 16 17 18 19 20 1, JOHN M. SAKAMOTO, declare: 21 1. I am a registered professional engineer licensed by the State of California and a 22 Senior Vice President with Eichleay Engineers Inc. of California with offices in Concord, 23 California. I have personal knowledge of the matters set forth herein and could and would 24 competently testify thereto if called upon as a witness. 25 2. Attached hereto as Exhibit "A" is a copy of my resume setting forth my relevant 26 qualifications and summarizing over twenty years of experience in petrochemical and heavy 27 28 a I 1 industrial facilities, including management, design and construction of major industrial, 2 petrochemical and mining facilities. 3 3. I have been provided copies of the Notice of Public Review and Intent to Adopt a 4 Proposed Negative Declaration, County File#CP02=30, and related documents pertaining to 5 proposed changes to the Industrial Safety Ordinance of Contra Costa County. This declaration is 6 submitted in opposition to the proposed negative declaration because the Initial Study and Proposed 7 Negative Declaration fail to give due consideration to the possible adverse impacts of the proposed 8 changes regarding employee apprenticeship and training and are proposed without reference to any 9 supporting studies or data. 10 4. I am generally familiar with the requirements of the California Environmental I I Quality Act("CEQA") from my broad experience with the management, design and construction of 12 petrochemical facilities. 13 5. The Bay Area refinery contractor base is composed of union signatory and non- 14 signatory contractors. Implementation of the proposed changes without due consideration of their 15 environmental impact is of concern. The proposed changes requiring contractors to utilize only 16 workers who have completed certain apprenticeship programs approved by the California 17 Apprenticeship Council will disqualify a large portion of the labor base,placing capital projects, as 18 well as maintenance and repair projects, in jeopardy. 19 6. This reduction in the fundamental labor base may result in long term material 20 adverse impacts on the safe operation and maintenance of refineries. This includes increased risk of 21 accidents resulting in environmental impacts. 22 7. There is no reference to studies or data which support the conclusions that these 23 changes will be beneficial rather than adverse. There is no documentation or study cited evaluating 24 apprenticeship programs and their correlation to refinery safety with regard to the risk of injury, 25 property damage or offsite chemical releases. 26 8. Without data correlating apprenticeship programs and refinery safety, the conclusion 27 that there is no adverse impact is unsupported. 28 2 1 9. Therefore, the effect of these changes needs to be addressed by a study made in 2 conjunction with an Environmental Impact Report under CEQA. These apprenticeship related 3 changes, as presently proposed, simply do not qualify under CEQA for a negative declaration. 4 I declare under penalty of perjury that the foregoing is true and correct and that this 5 declaration was executed on April 16, 2002, at Concord, California. 6 7 John M. Sakamoto, P.E. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2s 3 John M. Sakamto, i Senior Vice President Over 20 years experience in Selected Representative Projects: petrochemical and heavy industrial Project Manager/Engineer for multiple petrochemical projects facilities. Has extensive experience in the involving all types of process operations, offplot support management,design,and construction of and auxiliary facilities including utilities and process control major industrial, petrochemical and systems. mining facilities. Projects have included Project Manager for a major redesign of a coker unit. facility expansions,crude units,catalytic crackers, cokers,vapor recovery, Project Manager I Engineer for multiple cogeneration porjects. tankage,waste water treatment, Project Manager/Engineer for crude unit debottlenecking and cogeneration, production facilities, expansion project. blending and shipping, and grass root Project Engineer for tank field expansion project. refineries. Responsibilities have included Design and construction management of a totally integrated process review,detail design, design and hydrocarbon waste water treatment facility. construction management.The size of projects has ranged from multiple small Design and construction management of a octane additives design projects to large integrated design- plant, construct projects with a total constructed Design and construction of settling and filtration unit to support value over$125,000,000. design of an alternative fuels project. ® � Design management of a marine terminal and tankage facility in Sudan. Experience Highlights: Management of multi-discipline design and design-build projects for the petro- Representative Clients: chemical, research,and process ChevronTexaeo control industries. John is a recognized Exxon authority on vapor recovery facilities Ultramar Diamond Shamrock and risk analysis. Has in-depth Western States Petroleum Association (WSPA) knowledge of marine safety and Valero technology issues. Proficient in the Arco process review and design of USS-POSCO petrochemical and industrial facilities, CalTex Is adept in regulatory interpretation, Lawrence Berkeley National Laboratory(LBNL) permit reviews, regulatory advocacy, Stanford University and negotiation. In-depth knowledge Dow Chemical and experience in air emissions, Rhodin, Inc. CEQA, RMP, Process Safety Education f Professional Affiliations: Management and California's CAL- ARPARP regulations. Has successfully Registered Professional Engineer-California raced numerous successfully regulatory Western States Petroleum Association—President negotisues, permit applications and Contra Costa Council•Board Member issues, s es, requests. Major emphasis on Board Member Contra Costa County's Workforce Development Board-- development and implementation of Eich€eay's PRISMFrogram-Process Responsibility In Safety effective project management and Management-Author control systems including conceptual Eichleay s Spectrum Risk Management System—Author planning, permitting,estimating, Multiple Project Management Certifications scheduling, and construction Cil's Startup Planning Publication—Taskforce Member management. B.S. Engineering-University of Southern California Eichleay Industrial Resume H W-07-202 d:3GPM FROM JAY F I WELMAN PHD d 1 S 409 9193 P. 2 Jay M. f1rilkelman, Ph.D., C.P.E. Industrial 0 Forensic Psychologist 2240 Pacific Avenue, Penthouse 12 D San Francisco, California 94115-1433 Telephones(415) 409-1Y191 Facsi millet (416)409-9188 Jfin kelmant'a mindsprfngxoim Diplomates in lronatuic Psychvioxyl+icettBtZl Pay+ +oto►tint Amtrican Board.orProfesWonalPsyciaoiogy State of Gaiifarnia Amcrienn Board of For mvie Paycholop gtnt++*Mew York October 7, 2002 Board of Supervisors Contra Costa County 551 Pine Street Martinez, California 94553 RE: INDUSTRIAL SAFETY ORDINANCE Building Trades' Proposed Amendment® Contractor Safety Dear Board Members. I have reviewed the letter submitted by the economist Jaynes Rebltzer, Ph.D. on behalf of the union, Information submitted by Juliann Sum entitled Causes of Underreporting of Job Injuries," a study by Contra Costa County of the past 27 major accidents and releases at Contra Costa refineries since the inception of the ISO, County of Contra Costa's current Industrial Safety Ordinance (Ord. No. 98-48), the proposed amendment regarding "Contractor Safety"which would add a new Section 450.015(C) and relevant documents previously submitted into the administrative record. Qualifications I am an Industrial and Forensic Psychologist as well as a Certified Professional Ergonomist. I hold a Ph.D. in Industrial /Organizational Psychology from New York University and an M.B.A. In Industrial Psychology from the Bernard M. Baruch School of Business of The City College of The City University of New York. Both my M.B.A. and Ph.D. dissertations entailed ergonomic and human factors engineering research. I was a tenured full professor of Industrial Psychology at The City University of New York as well as Dean of Students at Baruch College. I also served on the Doctoral Faculty In Business, at the Graduate Center of the City University of New York. 14/07/2002 MON 17:32 ITX/RX NO 82601 Q002 10-07-202 4=37PM FROM JAY FiNKFLMAN PFD 415 409 919,E P. 3 I am a member of the Industrial Psychology and Engineering Psychology Divisions of the American Psychological Association, a member of the Human Factors and Ergonomics Society and of the American Academy of Forensic Psychology, I was awarded a Diplomats from the American Board of Professional Psychology and from the American Board of Forensic Psychology where I am also a fellow. I am a Certified Personnel Consultant from the National Association of Personnel Consultants and a Certified Employment Specialist from the California Association of Personnel Consultants. I am a licensed psychologist In the State of California and in the State of New York and listed in the National Register of Health Servke Providers in Psychology. I am a member of Psi Chi, Delta Sigma Rho— Tau Kappa Alpha and Beta Gamma Sigma, and received the Excellence In Teaching Award from the City university of New York. I have been qualified as an expert In human resources and safety (ergonomics) and recently provided expert testimony In the proceedings surrounding the February 1999 Tosco Avon refinery incident_ No !Empirical Support for Union's Position Sy ppoffing Amendment to tndustrlal Safety Qrdinance Nothing in the research cited by tar. Rebitzer, nor any other research that I have been able to obtain, addresses the salient Issue of the comparison of the effectiveness of contractor training verses mandatory apprenticeship training for workers at Industrial chemical, petrochemical and oil industry facilities—or for that matter, In any industrial setting. This Is the only significant Issue that should be considered in deciding the merits of an amendment that will serve to Impose an arbitrary requirementlimpediment to effective training of Industrial workers. By restricting the availability of training— and thus trained workers—essentially only to union apprenticeship programs, the net effect Is likely to be a reduction in the number of trained workers qualified to perform in the industrial chemical, petrochemical and oil industries. And without any way to demonstrate the safety advantage of such a restriction. The inevitable result of a restricted workforce is an increased demand for their services—which drives tip wages. Obviously this Is a useful agenda for the union, but It certainly does not appear likely to improve worker safety. There is no dispute that better industrial training whoever dews it— is correlated with Improved performance and reduced accidents. However, none of the research cited by Dr. Rebitzer, nor any compelling evidence In the record, addresses the 2 10/07/2002 MON 17.32 [TX/RX NO 82601 IM003 10-07-202 4:38PM FROM JAY F S NKELMAN PHb 41S 409 9193 P. 4 issue of safety with CAC-approved programs, as opposed to other contractor training_ Dr. Rebitzer fails to explain or document how' economic theory, case studies, surveys and econometric analysis suggests that contractors have neither the appropriate Incentives nor the technical expertise to provide adequate levels of safety training and safety supervision for their employees.' l have not seen any such data -and Dr. Rebitzer does not supply it either. A contractor cannot defer supervision to a union under any circumstances-even if a union was willing to assume such responsibility. Realistically, a union would never wish to assume the workers compensation exposure and costs- in lieu of a contractor.And the amendment does not incorporate such a provision either. In essence the union would prefer to have full credit and control of the training process-but none of the responsibility, liability and cost associated with its actual implementation in industry. There is no disputing Dr. Rebitzer's conclusion that"contract workers play an essential role in the economics of petrochemical plants and these plants cannot reasonably be expected to rely solely on regular employees for renovation and turnaround projects." Of course this *given' has no bearing on who should be responsible for-and who should be restricted from-training and supervising these contract workers. Though Dr. Rebitzer maintains that"the contractors who hire and supervise contract workers employed at petrochemical plants have far fewer incentives to invest in safety than the host plant itself-he cannot support that claim. in fact the opposite is more likely to prove true. While Dr. Rebitzer correctly acknowledges that"injuries to Individual workers are costly to the contractor" he cannot justify the conclusion that the "host plant" bears the brunt of contractor failure to make sufficient investment In safety training-and contractor error. If that conclusion was valid-there would not be a cost savings associated with the use of contractors--and they simply would not be used. In similar fashion, Dr. Rebitzer's analysis fails to acknowledge just how costly accidents are to contractors. They can make the difference between profitable operations and losses-between staying in business and going out of business. In fact, it is a primary focus of all industrial staffing operations with which I have ever been associated -both as a line manager and as a consultant. The argument that"the insufficient Incentives to invest in training may be compounded by a contractor's lack of familiarity with the technical details of the host plant's operation" is, of course, equally applicable to a union apprenticeship program-even If there was evidence to support it to begin with. 3 10/07/2002 MON 17:32 [TX/RX NO 82601 Q004 10-07-202 4.38PM FROM JAY FINKELMAN PHD 415 409 9193 P. 5 In fact, none of the studies that pr. Rebitzer cites address the only relevant comparison of the relative safety associated with contractor training —as contrasted to union apprenticeship training, instead, they substitute the Irrelevant comparison to host plant training —which Is not at issue with respect to the proposed amendment. There is no evidence in the record to allow the Board to conclude that CAC- approved apprenticeship training is beneficial as opposed to other training. There is no evidence of what the training consists of_ There Is no evidence that the CAC-approved programs involve specialty training for refinery-specific skills and safety. Without this and other Information, you cannot make a conclusion that one program will be better than others. UnderreRorting of Job Iniuries Is Unrelated to Conte rr Status Despite the innuendo in a misleading presentation to the Contra Costa Board of Supervisors (9-17-02) about the causes of underreporting of job injuries, there Is no credible evidence that contract employees are any less likely than an operatoes full-time employees to report actual job injuries. In fact, an operator's full-time employees may have the most incentive to not alienate themselves from their main employers by filing costly claims against them. My 14 years of staffing industry experience suggests that bogus Injury claims may be the issue most likely to be influenced by temporary verses full-tune employees. W2 contract employees (such as the bulk of those at issue with respect to the proposed amendment) are likely to report claims at the same frequency as an operator's full-time employees.There is no empirical evidence to the contrary. The greater probability is that"protected" employees (such as those covered by the building trades` union) have fewer disincentives to file a bogus claim. Unless fraud can be proven, there Is not much that can be done to such an employee. An extended "vacation with pay' can easily result from a non-existent injury by a dishonest worker. (This is not an accusation —only an obvious deduction.) A close examination of each of the points raised In the presentation reveals deceptively Inappropriate and irrelevant comparisons—unrelated to the proposed amendment. For example, do we really need to care about the author's speculation as to whether workers In small companies or large companies have greater familiarity with the workers" compensation system? It is Instructive that the `Union Protection"portion of the presentation has a number of restrictive conditions—even if it did apply to the proposed amendment —which it does not. For example, it refers only to active unions, obfuscates the reporting of hazard's with the reporting of injuries, restricts Itself only to musculoskeletal disorders (rather than the more typical cuts and burns and toxic 4 10/07/2002 MON 17:32 1T'X/RX NO 82601 @005 10-07-202 4:39PM FROM .JAY P I NKFLMAN PHD 415 409 9193 P. 6 fume inhalations) and does not differentiate reporting of valid verses bogus injuries. Finally, the presentation fails to consider that contractors and operators have the same Incentive to protect their respective W2 employees from injury—to protect their workers' compensation mod rates -- if not for obvious ethical reasons. The union, in contrast has no such financial incentive to encourage them to 'do the right thing.' International Research Supports Contractor Position Regarding industrial Safety Ordinance A comprehensive analysis of employee-level and establishment-level data from a survey conducted by the Spanish Department of Labor addressed the universal concern about job safety and the rise in work injuries. It is highly instructive with respect to the Industrial Safety Ordinance, because for the first time that I have been able to discover, It controls for critical 'working conditions" variables before comparing accident rates between "temporary" and "permanent' workers. The analysis was published in the Industrial S Labor Relations Review, January 2002, Vol.55 Issue 2, pp. 252-285. Using an accepted statistical analysis to control for extraneous variables that would otherwise create misleading data (or at best"error variance') the author was able to cut through the rhetoric and get to the basis of the determinants of work injuries. Not surprisingly, and consistent with a claim made by Spanish unions, the researcher found "the single most Important determinant of the likelihood of work-related injury and illness Is working conditions, not education or tenure." However, quite contrary to the union's position regarding the Industrial Safety Ordinance, the researcher concluded that"although temporary worker's exhibit higher work Injury and illness rates than permanent workers, they exhibit a lower likelihood of worts injury and Illness than permanent workers once the analysis controls for a given set of working conditions." Let me emphasize that after proper analysis—the temporary'wormers actually experienced a superlor safety record. The implication for the consideration of the proposed amendment Is clear. It does not matter who the workers are—or who trains them. Safe working conditions-- coupled with effective training —will always be the key to true industrial safety and accident reduction. Empirical Evidence Contrary to the Union's Position Regarding Industrial Safety Ordinance 5 10/07/2002 MON 17.32 [TX/RX NO 82601 1 006 10-07-202 4:39PM FROM JAY F I NKEL.MAN PHD 41S 409 9193 P. 7 The actual experience record, as reported in the study of the past 27 major accidents and releases at Contra Costa refineries since the inception of the ISO, empirically undermines the building trades' position - and their proposal for amending the ISO. A review of each of these accidents reveals that contractors were involved In only two of the 27 accidents and releases--but were not at fault In any of them—and did not cause any of them. This Is a rather extraordinary finding that is both statistically and conceptually significant It is also not subject to interpretation by "interested" parties-•the numbers speak for themselves. There is also not an-issue with respect to "extrapolating' accident data from situations that may not be representative of the circumstances that are applicable to the proposed amendment. The circumstances are precisely Identical because actual accidents In the same industries and geography are being considered. The only reasonable conclusion, that is supported by the data, Is that the contractors appear to work far more safely than the operators. One might conclude, only slightly facetiously,that the way to improve industrial safety Is to turn full responsibility over to the contractors--with their superb safety record. My conclusion from this study is that, above all else, more training is needed -for and by -all operators. And such training probably has utility for all parties involved In potentially risky industrial operations, l would also propose that the training--and the results of the training—be evaluated through a program of performance evaluation and quality metrics:.t have set up and evaluated similar programs in the past--and they can be very effective in enhancing safety and reducing accidents. leogg on for Limiting Approval Process to CAC There Is no credible rationale that I can imagine, nor empirical research that l have reviewed,that supports the utility of imposing a California Apprenticeship Council ("CAC"} —or any proprietary and thus limiting—approval or training requirement on industrial contractors, from a safety and ergonomic perspective. There are typically multiple approaches and methodologies that can be utilized in the design of a credible and effective Industrial safety program. There is no basis to conclude that CAC-approved programs are superior to those mandated by current guidelines administered through contractors utilizing non- CAC approved training programs-»and there is some basis to conclude that they may be Inferior. It is my understanding that according to Cal-OSHA data, trade union workers in the rqftpgry building trades have nearly twice the job injuries as their non-union colleagues (.lune 10, 2002 letter from George B. Smith, ARCADIS, to Contra Costa County Hazardous �Iaterlals Commission). 6 10/07/2002 MON 17:32 1TX/RX NO 82601 007 10-07-202 4:40PM FROM JAY F I NKELMAN PHD 415 409 9193 P. 8 While It is reasonable to impose minimum standards on the content of any safety program—and on the performance requirements of those successfully completing such a program—it is not reasonable to artificially restrict who can provide such training and assessment. To do so may prove counterproductive to the safety agenda by reducing the opportunities that workers have to obtain necessary training —and thus reducing the population of properly trained and certified workers. Meed for Statisticatiy Significant Justification of Restricted Programs From a scientific safety perspective, it Is Indefensible to impose any requirement on a training or evaluation program that does not manifest a statistically significant correlation with a reliable and valid criterion measure of safety. In other words, there is no empirical justification to require that anything be done, in the interest of safety, that does not have an actual demonstrable relationship to a defensible measure of safety. The implication is that unless there is a scientifically established relationship between completion of a CAC approved training process and Increased safety or reduced accidents—there is no justification to Impose such a requirement. in fact, such an artificial restriction Is far more likely to be counterproductive to a legitimate safety objective. Reduction of Qualified Workforce Through Apprenticeship Programs Not surprisingly, the net effect of imposing workforce certification requirements that are unrelated to the ability to perform and be qualified for a job assignment will only serve to unnecessarily reduce the available labor force. Whenever unnecessary requirements or thresholds are introduced in order to (artificially) restrict access to employment opportunities—the-results are never good. There Is, of course, a legitimate use for certification and performance requirements for certain jobs--Including certain refinery workers. However, this rationale should not be used to prejudicially restrict access to certification programs. To do so would violate fundamental fairness in the workplace—as well as generally accepted human resource management practices. Adverse Impact On Selection Ratios Technically, anything that is done to limit the population of available, similarly qualified workers, into a training or assessment program, serves to adversely increase the selection ratio. This means that If fewer workers are permitted to enter the selection "funnel" —a higher percentage of those workers will have to 7 10/07/2002 MON 17.32 [TX/RX NO 82601 [MOOS 10-07-202 4:41 PM FROM JAY F I WELMAN PHD 4.15 409 9193 P-9 be hired or assigned to meet whatever job requirements they are being recruited to fulfill. The math is irrefutable. If an employer is forced to hire (or select) more of a given population of workers with specific skill requirements—It will inevitably be forced to dig deeper into the pool of applicants or prospects. This typically entails a degradation of the average skill level of the final workforce that is selected. And there is no credible gain to be derived from this restriction. In fact, only political agendas.-not safety agendas--are served by limiting access to qualified and effective training programs. No one has a monopoly on who may provide such essential programs. There is certainly no evidence that contractors utilizing non-CAC approved training programs have less capability or incentive or experience In developing and implementing these programs than contractors utilizing CAC-approved programs. Any program or process that restricts access of potentially qualified workers will be detrimental to the qualification process and is likely to impede overall safety at such a facility. Lack of IEmoirical Research Justification For;A►mendmertt A preliminary review of the human factors and ergonomics literature also does not reveal any evidence or basis for assuming the superiority of a union based apprenticeship training program over an employer sponsored training program in assuring workplace safety. Thus, the proposed amendment is not defensible from an empirical perspective.And there is direct credible evidence to the contrary--from the study of the past 27 major accidents and releases at Contra Costa refineries. However, additional training of all operators is probably appropriate. Sincerely, Jay M. l=inkelman, Ph.D., C.P.E. 8 1.0/07/2002 MON 17.32 1TX/RX NO 82601 0 009 ARCADIS ARCADIS G&M,Inc. infrastructure, buildings, environment communications 1050 Marina Way South Richmond California 94804 Tel 510 233 3200 Contra Costa County Fax 510 233 3204 Hazardous Materials Commission www.arcadis-us.com 20 Allen Street Martinez,California 94553 Subject: ENVIRONMENT Re: industrial Safety Ordinance Apprenticeship Training Amendments Dear, Chairperson Stewart and Members of the Hazardous Materials Commission: Date: I work for ARCADIS G&M, Inc., an engineering firm, which provides 10 June 2002 environmental,health and safety services to the Bay Area refining community. Through many years of providing services to the refining industry, I know that safety contact: is a top priority in the refining business. George Smith I am writing to ask you to place safety before politics and VOTE NO on the Phone: Contractor's Apprenticeship Training amendments to the Industrial Safety Ordinance 510-233-3200 proposed by the Contra Costa Building Trades. Email. The Building Trades' proposal requires a refinery worker to go through a State gbsmith@arcadis-us.com Apprenticeship Council-approved job-training program.The State Apprenticeship Council is dominated by the Building Trades,and therefore will only allow Trades union members to work in refineries. The refining community is very supportive of training in the areas of safety and refinery skills. However,based on Cal-OSHA data, there is no correlation between attending the Trades' apprenticeship program and an improved safety record. In fact, according to Cal-OSHA data, the refinery building trades workers have almost twice as many injuries as their non-trade counterparts. The refining community supports a four-point program to improve worker skills and refinery safety: I. All contract workers, building trades or merit shop, must graduate from a job training program which meets either state or national job training standards. 2. All contract workers must pass a stringent drug and alcohol test and will be subject to random testing. 3. All contract workers must pass a safety skills test in their crafts. 4. Each refinery must consider a contractor's safety record as criteria for employment. Part of a bigger picture Ak Contra Costa County ARCADIS June 10,2002 Refineries must hire the most qualified,best trained workers available. They should not be forced to hire workers based on any other factors. To date,all of the subcommittees of the County's Hazardous Materials Commission and Public and Environmental Health Advisory Board have voted against the Building Trades' apprenticeship proposal. Please join us in saying NO TO POLITICS. VOTE NO on the Contractor's Apprenticeship Training amendments. Thank you for your consideration of my comments. Sincerely, George B. Smith Director of Energy Services ARCADIS G&M, Inc. CC: Contra Costa Board of Supervisors Contra Costa Planning Commission Page: 0ocumentl 2/2 f 09/29/02 12:06 FAX + ANI)L bbiv bUiviv uuo rr29 o n � 'C :oz m y o 4 � cr ebb �, t7 c+ o va CL C� �+ o IM e c ,C , . ' ED `o CX• 9 R ® S n CA oSP 4 - tis r CL :d , �• � C2 co W co �r _ FL CL o co 09/26/2002 THU 13:02 [TX/RX NO 81891 12006 09/28/02 12:07 FAX . 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IV 09/26/2002 THU 13•.02 CTX/RX NO 81891 2013 00/28!02 12'08 FA _ --_-.• --.. ► AtVu�ttarty nuivty �+ U14 X Ej rte► C 3 C9Er 8C,x ca ls, t3. -d ET j+ � � � 9�" 4) � ^' � �•� �.�� � tom•► � � - o `4 ET -Py tJ d 09/26/2002 THU 13:02 ['CX1HX NO 81891 Z014 Op,,-415/02 12:08 FAX A.N0hXbbN tUNN C. uta 44 EL o to CL UA CL 09/26/2002 THU 1.3.02 [TX/RX NO 81891 16015 Work stoppages involving 1,000 workers or more, 1947-2001 Page 1 of 2 AMMIL SuMQU of tabor k ics Was ngW,G. 0212 SLS Honse I P1,0grams z� Survey-5 C;et DetiMed Statisi cs I�Iassary ( Whit's New ( Find it! In C Q-L - CBA HorneOTHER AVAILABLE ECONOMIC NEWS RELEASES Work stoppages involving 1,000 workers or more,, 1947-2001 Table 1. Work stoppages involving 1,000 workers or more, 1947-2001 1 I 1 stoppages l/ 1 Days idle 1/ 1 I I I I Year i I Workers 1 I Percent of (Number I involved I Number I estimated I I (thousands) ( (thousands) ( working ! 1 I I time 2/ i i I I 1947 . . . . . . . . . . . . . . . . . . . . . . 1 270 1 1,629 1 25,720 1 (3) 1948 . . . . . . . . . . . . . . . . . . . . . . 1 245 1 1,435 1 26,127 1 0.22 1949 . . . . . . . . . . . . . . . . . . . . . . 1 262 1 2,537 1 43,420 1 .38 1950 . . . . . . . . . . . . . . . . . . . . . . I 424 1 1, 698 1 30,390 1 .26 1951 . . . . . . . . . . . . . . . . . . . . . . 1 415 1 1,462 1 15,070 1 .12 1 1 1 1 1952 . . . . . . . . . . . . . . . . . . . . . . 1 470 1 2,746 1 48,820 1 .38 1953 . . . . . . . . . . . . . . . . . . . . . . 1 437 1 1, 623 1 18,130 1 .14 1954 . . . . . . . . . . . . . . . . . . . . . . 1 265 1 1,075 1 16, 630 1 .13 1955 . . . . . . . . . . . . . . . . . . . . . . 1 363 1 2,055 1 21,180 1 .16 1956 . . . . . . . . . . . . . . . . . . . . . . 1 287 1 1,370 1 26,840 1 .20 1 1 1 1 1957 . . . . . . . . . . . . . . . . . . . . . . 1 279 1 887 1 10,340 1 .07 1958 . . . . . . . . . . . . . . . . . . . . . . 1 332 1 1,587 1 17, 900 1 .13 1959 . . . . . . . . . . . . . . . . . . . . . . 1 245 1 1,381 1 60,850 1 .43 1960 . . . . . . . . . . . . . . . . . . . . . . 1 222 1 896 1 13,260 1 .09 1961 . . . . . . . . . . . . . . . . . . . . . . 1 195 1 1,031 1 10, 140 1 .07 1 1 1 1 1962 . . . . . . . . . . . . . . . . . . . . . . 1 211 1 793 1 11,760 1 .08 1963 . . . . . . . . . . . . . . . . . . . . . . 1 181 1 512 1 10,020 1 .07 1964 . . . . . . . . . . . . . . . . . . . . . . 1 246 1 1,183 1 16,220 1 .11 1965 . . . . . . . . . . . . . . . . . . . . . . 1 268 1 999 1 15, 140 1 .10 1966 . . . . . . . . . . . . . . . . . . . . . . 1 321 1 1,300 1 16,000 1 .10 I I 1 1 1967 . . . . . . . . . . . . . . . . . . . . . . 1 381 1 2,192 1 31,320 1 .18 1968 . . . . . . . . . . . . . . . . . . . . . . 1 392 1 1,855 1 35,367 1 .20 1969 . . . . . . . . . . . . . . . . . . . . . . 1 412 1 1, 576 1 29,397 1 .16 1970 . . . . . . . . . . . . . . . . . . . . . . 1 381 1 2,468 1 52,761 1 .29 1971 . . . . . . . . . . . . . . . . . . . . . . 1 298 1 2,516 1 35,538 1 .19 1 1 1 1 1972 . . . . . . . . . . . . . . . . . . . . . . 1 250 1 975 1 16,764 1 .09 1973 . . . . . . . . . . . . . . . . . . . . . . 1 317 1 1, 400 1 16,260 1 .08 1974 . . . . . . . . . . . . . . . . . . . . . . 1 424 1 1,796 1 31,809 1 .16 1975 . . . . . . . . . . . . . . . . . . . . . . 1 235 1 965 1 17,563 1 .09 1976 . . . . . . . . . . . . . . . . . . . . . . 1 231 1 1,519 1 23, 962 1 .12 1 1 1 1 http://stats.bls.gov/news.release/wkstp.tO l.htm 9/26/02 r Work stoppages involving 1,000 workers or more, 1947-2001 Page 2 of 2 1977 . . . . . . . . . . . . . . . . . . . . . . 1 298 1 1,212 1 21,258 1 . 10 1978 . . . . . . . . . . . . . . . . . . . . . . 1 219 1 1,006 I 23,774 1 .11 1979 . . . . . . . . . . . . . . . . . . . . . . 1 235 1 1,021 1 20,409 1 .09 1980 . . . . . . . . . . . . . . . . . . . . . . 1 187 1 795 1 20,844 1 .09 1981 . . . . . . . . . . . . . . . . . . . . . . 1 145 1 729 1 16, 908 1 .07 1 1 1 1 1982 . . . . . . . . . . . . . . . . . . . . . . I 96 1 656 1 91061 1 .04 1983 . . . . . . . . . . . . . . . . . . . . . . I 81 1 909 1 17,461 1 .08 1964 . . . . . . . . . . . . . . . . . . . . . . I 62 1 376 1 8,499 1 .04 1985 . . . . . . . . . . . . . . . . . . . . . . 1 54 1 324 1 7,079 1 .03 1986 . . . . . . . . . . . . . . . . . . . . . . € 69 1 533 1 11,861 1 .05 1 1 1 1 1987 . . . . . . . . . . . . . . . . . . . . . . 1 46 1 174 1 4, 481 1 .02 1988 . . . . . . . . . . . . . . . . . . . . . . I 40 1 118 1 4,381 1 .02 1989 . . . . . . . . . . . . . . . . . . . . . . I 51 1 452 1 16, 996 1 .07 1990 . . . . . . . . . . . . . . . . . . . . . . I 44 1 185 1 5, 926 1 .02 1991 . . . . . . . . . . . . . . . . . . . . . . I 40 1 392 1 4,584 1 .02 1 1 1 1 1992 . . . . . . . . . . . . . . . . . . . . . . 1 35 1 364 1 3, 989 1 .01 1993 . . . . . . . . . . . . . . . . . . . . . . 1 35 1 182 1 3, 981 1 .01 1994 . . . . . . . . . . . . . . . . . . . . . . 1 45 1 322 1 5,020 1 .02 1995 . . . . . . . . . . . . . . . . . . . . . . I 31 1 192 1 5,771 1 .02 1596 . . . . . . . . . . . . . . . . . . . . . . 1 37 1 273 1 4,889 1 .02 1 1 1 1 1997 . . . . . . . . . . . . . . . . . . . . . . I 29 1 339 1 4,497 1 .01 1998 . . . . . . . . . . . . . . . . . . . . . . 1 34 1 387 1 5, 116 1 .02 1999 . . . . . . . . . . . . . . . . . . . . . . I 17 1 73 1 1,996 1 .01 2000 . . . . . . . . . . . . . . . . . . . . . . 1 39 ► 394 1 20,419 1 .06 2001 . . . . . . . . . . . . . . . . . . . . . . I 29 1 99 1 1, 151 1 (4) 1/ The number of stoppages and more than one stoppage during workers relate to stoppages that the year. began in the year. Days of 2/ Working time is for all idleness include all stoppages in employees, except those in private effect. Workers are counted more households, forestry, and fisheries. than once if they are involved in 3/ Not available. 4/ Less than .005 percent. Table of Contents ( Back to Tars www.doLgo Frequently Asked Questions I Freedom of Information Act I Customer Survey Privacy &Security Statement I Linking to Our Site I Accessibility Information U.S. Bureau of Labor Statistics URL: http://www.bis.ciov/CBA Office of Compensation and Working Conditions Phone: (202) 691-6284 or 6275 2 Massachusetts Avenue, NE Suite-4175 Fax: (202) 691-6647 Washington, DC 20212-7001 CBA data questions:cbainfoGbis.aov Technical(web) questions:Webmaster@bis.aov Other comments:feed backC bis.00v http://stats.bls.gov/news.release/wkstp.tO l.htm 9/26/02 "ttT TTTT m 00 0 fl 00C`50 � � �:�.T+ � s Him RA . viisl OR CD C CTi W to r`J _ C�h W O 2 z di V�?V-•+V tV W O NJa W Caw V CD WP. ic 9 r _ Ci m s cN- CCC777 �p � Qs ]D C7V C7Ga)N ?V 11 CS A V0NW} 8N H Cn <ntnte' max ' m ` m l � l �� aha ,� N Q ' `° 2 v a H H god z a m w 0 nb N Cpm ig z (DWK3 W"—@i`c$� i `bo" sacv �iriiP'n`fo'w�n�i �' w�ia�i� `rQiN � � � 9 0 cu 5• N -` N ��v ma8'"m owl ���� 4.wa ,8A N� 6NwW tit •aaz��b U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD INVESTIGATION REPORT REFINERY FIRE INCIDENT (4 Dead, I Critically Injured) ,u, }�# 5 m I �a i t' A TOSCO AVON REFINERY MARTINEZ, CALIFORNIA FEBRUARY 23, 1999 KEY ISSUES: ■ CONTROL OF HAZARDOUS NONROUTINE MAINTENANCE ■ MANAGEMENT OVERSIGHT AND ACCOUNTABILITY ■ MANAGEMENT OF CHANGE ■ CORROSION CONTROL REPORT No. 99.019.1-CA ISSUE DATE: MARCH 2001 U.S. CHEMICAL SAFE'T'Y AND FAzARD INVESTIGATION BOARD Uflice of Investigations and Safety Programs 2175 K Street,NW,Suite 400 Washington,DC 20037 (202)261.7600 U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD INVESTIGATION REPORT REFINERY EIDE INCIDENT (4 Dead, I Critically Injured) TOSCO AVON REFINERY MARTINEZ,CALIFORNIA FEBRUARY 23, 1999 KEY ISSUES CONTROL OF HAZARDOUS NONROUTINE MAINTENANCE MANAGEMENT OVERSIGHT AND ACCOUNTABILITY MANAGEMENT OF CHANGE CORROSION CONTROL REPORT No. 99.0144,CA ISSUE DATE: MARCH 2001 Abstract his investigation report examines the refinery fire incident that occurred on February 23, 1999, in the crude unit at the Tosco Corporation Avon refinery in Martinez, California. Four workers were killed, and one was critically injured. This report identifies the root and contributing causes of the incident and makes recommendations for control of hazardous nonroutine maintenance, management oversight and accountability, management of change, and corrosion control. The U.S. Chemical Safety and Hazard Investigation Board (CSB) is an independent Federal agency whose mission is to ensure the safety of workers and the public by preventing or minimizing the effects of chemical incidents. CSB is a scientific investigative organization; it is not an enforcement or regulatory body. Established by the Clean Air Act Amendments of 1990, CSB is responsible for determining the root and contributing causes of accidents, issuing safety recommendations, studying chemical safety issues, and evaluating the effectiveness of other government agencies involved in chemical safety. No part of the a conclusions, findings, or recommendations of CSB relating to any chemical incident may be admitted as evidence or used in any action or i suit for damages arising out of any matter mentioned in an investigation report (see 42 U.S.C. § 7412(r)(6)(G)). CSB makes public its actions and decisions through investigation reports, summary reports, safety t bulletins, safety recommendations, special technical publications, and !' statistical reviews, More information about CSB may be found on the " World Wide Web at http-//www.chemsafety.gov. ,s 9, �1 4 � Salus Populi Est Lex Suprema . People's Safety is the Highest Law 3 Contents EXECUTIVE SUMMARY.................................................................9 1.0 INTRODUCTION............................ .............. ............... 17 1.1 Background............................................................................. 17 1.2 Investigative Process................................................................ 17 1.3 Tosco Avon Oil Refinery Facility............................................. 18 1.4 Crude Fractionator and Naphtha System ..........................I... 18 1.4.1 Fractionator................................................................ 18 1.4.2 Naphtha System ......................................................... 19 2.0 DESCRIPTION OF INCIDENT.......................................... 21 2.1 Pre-Incident Events.........................................................I....... 21 2.1.1 Detection of Naphtha Piping Leak ............................. 21 2.1.2 Emergency Response and Inspection ......................... 21 2.1.3 Recurrence of Leak..................................................... 23 2.1.4 Efforts to Drain and Replace Piping............................ 24 2.2 The Incident........................................................................... 26 2.2.1 Job Preparation .......................................................... 26 2.2.2 First Cut and Second Cut .......................................... 27 2.2.3 Naphtha Release ........................................................ 28 2.3 Autoignition ............................................................................ 29 2.4 Emergency Response.............................................................. 29 3.0 ANALYSIS OF INCIDENT................................................... 31 3.1 Hazardous Nonroutine Maintenance.................................... 31 3.2 Job Planning........................................................................... 32 33 Hazard Identification and Evaluation..................................... 34 3.3.1 Job-Specific Hazards ................................................. 34 3.3.1.1 Inability to Isolate ......................................... 34 3.3.1.2 Inability to Drain........................................... 35 3.3.1.3 Other Hazards............................................. 37 33.2 Good Practice Guidelines for Maintenance Work ..... 37 3.3.3 British Petroleum Grangemouth Incident .................... 39 3.4 Unit Shutdown Decision Making ........................................... 39 3.5 Management Oversight......... ................................................ 40 3.5.1 Accountability for Hazardous Work........................... 40 3.5.2 Supervision of Job Execution..................................... 41 3.5.3 Stop Work Authority .................................................. 43 3.5.4 Auditing ...................................................................... 44 5 Contents (cont'd) 3.6 Permit System and Line Breaking Procedure........................... 45 3.6.1 Permit and Procedure Deficiencies.............................. 45 3.6.1.1 Inability to Follow Procedures...................... 46 3.6.1.2 Identification of Specific Hazards................ 46 3.6.2 Deviations From Good Practice .................................. 47 3.7 Corrosion Control and Mechanical Integrity ......................... 48 3.7.1 Desalter Performance.................................................. 48 3.7.2 Corrosion.................................................................... 49 3.8 Management of Change......................................................... 51 4.0 ROUT AND CONTRIBUTING CAUSES........................... 53 4.1 Root Causes ........................................................................... 53 4.2 Contributing Causes............................................................... 54 5.0 RECOMMENDATIONS ...................................................... 55 6.0 REFERENCES ...................................................................... 57 APPENDIX A: Incident Timeline................................................. 59 APPENDIX B: Logic Tree Diagram ............................................. 67 APPENDIX C: Executive Summary of The Hendrix Group, Inc., Report............................................. 69 6 Figures I Naphtha Stripper Level Control Valve (LCV) Manifold Removed to Ground Level................................... ....20 2 Fractionator and Naphtha Draw, Simplified Diagram at Time of Initial Leak ..................... ................--.......... .......22 3 Closeup of Material Blockage of Block Valve (C), Upstream of LCV,150... ..........................................................24 4 Fractionator and Naphtha Draw, Simplified Diagram, Draining at Lower Flange at Time of Release...........................25 5 Closeup of Stem of Block Valve (C), Upstream of LCV-150, With the Valve Wheel Fully Tightened...................................26 6 Fractionator and Naphtha Draw, Simplified Diagram, First Cut and Second Cut ................... ........................... ...... 27 7 Leak Test of the Naphtha Stripper Level Control Bypass Valve (B) in the Closed Position, Showing Significant Water Flow..................--.................-.. 50 Acronyms and Abbreviations AIChE American Institute of Chemical Engineers API American Petroleum Institute CaVOSHA California Department of Industrial Relations, Division of Occupational Safety and Health CCPS Center for Chemical Process Safety CFR Code of Federal Regulations CSB U.S. Chemical Safety and Hazard Investigation Board EPA U.S. Environmental Protection Agency OF Degrees Fahrenheit HAZOP Hazard and operability HSE Health and Safety Executive (United Kingdom) ICE Institution of Chemical Engineers (United Kingdom) LCV Level control valve MOC Management of change MSDS Material Safety Data Sheet NFPA National Fire Protection Association NPRA National Petrochemical & Refiners Association NTIS National Technical Information Service NTSB National Transportation Safety Board OSHA Occupational Safety and Health Administration PACE Paper, Allied-Industrial, Chemical & Energy Workers International Union psig Pounds per square inch gage PPE Personal protective equipment PSM Process safety management SCBA Self-contained breathing apparatus UDS Ultramar Diamond Shamrock Corporation U.S.C. United States Code 8 Executive Summary 0n February 23, 1999, a fire occurred in the crude unit at Tosco ES.1 Introduction Corporation's Avon oil refinery in Martinez, California. Work- ers were attempting to replace piping attached to a 150-foot-tall fractionator tower while the process unit was in operation. During removal of the piping, naphtha2 was released onto the hot fraction- ator and ignited. The flames engulfed five workers located at differ, ent heights on the tower. Four men were killed, and one sustained serious injuries. Ultramar Diamond Shamrock Corporation {UDS} purchased the facility in September 2000 and renamed it the Golden Eagle refinery. Because of the serious nature of this incident, and the fact that another fatality had occurred at the Avon facility in 1997, the U.S. Chemical Safety and Hazard Investigation Board (CSB) initiated an investigation to determine the root and contributing causes of the incident and to issue recommendations to help prevent similar occur- rences. ES.2 Incident On February 10, 1999, a pinhole leak was discovered in the crude unit on the inside of the top elbow of the naphtha piping, near where it was attached to the fractionator at 112 feet above grade.' Tosco personnel responded immediately, closing four valves in an attempt to isolate the piping. The unit remained in operation. Subsequent inspection of the naphtha piping showed that it was extensively thinned and corroded. A decision was made to replace a large section of the naphtha linea Over the 13 days between the discovery of the leak and the fire, workers made numerous 'A fractionator is an oil refinery processing vessel that separates preheated hydrocar- bon mixtures into various components based on boiling point. The separated components are referred to as fractions or cuts. Inside the fractionator,some trays draw off`the fractions as liquid hydrocarbon products(such as naphtha),and piping transports them to storage or for further processing. 2 Petroleum naphtha is a highly flammable mixture of liquid hydrocarbons drawn off as a cut from the fractionator tower. s Above grade"refers to the vertical distance from ground level at the point upon which equipment rests. a The term"naphtha line"is synonymous with naphtha piping. "Naphtha draw line" was also used at the facility to refer to the naphtha piping. The draw line takes or "draws"naphtha product from the 38th tray of the fractionator,where it flows through a level control valve to the naphtha stripper vessel. 9 unsuccessful attempts to isolate and drain the naphtha piping. The pinhole leak reoccurred three times, and the isolation valves were retightened in unsuccessful efforts to isolate the piping. Nonetheless, Tosco supervisors proceeded with scheduling the line replacement while the unit was in operation. On the day of the incident, the piping contained approximately 90 gallons of naphtha, which was being pressurized from the running process unit through a leaking isolation valve. A work permit author- ized maintenance employees to drain and remove the piping. After several unsuccessful attempts to drain the line, a Tosco maintenance supervisor directed workers to make two cuts into the piping using a pneumatic saw.' After a second cut began to leak naphtha, the supervisor directed the workers to open a flange" to drain the line. As the line was being drained, naphtha was suddenly released from the open end of the piping that had been cut first. The naphtha ignited, most likely from contacting the nearby hot surfaces of the fractionator, and quickly engulfed the tower structure and personnel. ES.3 Key Findings 1. The remove[ of the naphtha piping with the process unit in operation involved significant hazards. This nonroutine'work required removing 100 feet of 6-inch pipe containing naphtha, a highly flammable liquid Workers conducting the removal were positioned as high as 112 feet above ground, with limited means of escape. The hot process unit provided multiple sources of "ignition, some as close as 3 feet from the pipe removal work. One The hot process unit provided multiple isolation valve could not be fully closed,which indicated possible sources of ignition, some as close as plugging. 3 feet from the pipe removal work. On three occasions prior to the incident, the naphtha pipe resumed leaking from the original pinhole and felt warm to the s A pneumatic saw is a cutting device that is energized by air pressure rather than electrical energy. 6 A flange is a rim on the end of a section of piping or equipment used for attachment to other piping and equipment. I The Center for Chemical Process Safety(CCPS)defines"nonroutine work"as unscheduled maintenance work that necessitates immediate repair and may introduce additional hazards(CCPS, 19956;p.212). One example is'breakdown maintenance," where equipment is operated until it fails. In this incident,the February 10 naphtha draw line leak is an example of breakdown maintenance. 10 touch, indicating that one or more isolation valves were leaking. Numerous attempts to drain the piping were unsuccessful; a failed attempt to ream out the drain lines and the removal of a small section of pipe confirmed that the line was extensively plugged. On seven occasions, the downstream naphtha stripper vessel filled—indicating probable isolation valve leakage. 2. The naphtha pipe that was cut open during the repair work was known by workers and the maintenance supervisor to contain flammable liquid. Although Tosco procedures required piping to be drained, depressured, and flushed prior to open- ing,$ this was not accomplished because extensive plugging prevented removal of the naphtha. The procedures did not specify an alternative course of action if safety preconditions, such as draining, could not be met. Although the hot process equipment was close to the removal work, Tosco's procedures and safe work permit did not identify ignition sources as a Despite serious hazards caused potential hazard. The permit also failed to identify the presence by the inability to drain and isolate of hazardous amounts of benzene in the naphtha. the line—known to supervisors and 3. The naphtha stripper vessel level control bypass valve was workers during the week prior to the leaking, which prevented isolation of the line from the operating incident—the low risk classification process unit. As a result, the running unit pressurized the naphtha was not reevaluated, nor did piping. Excessive levels of corrosive material and water in the ,management formulate a plan to naphtha line and operation of the bypass valve in the partially control the known hazards. open position for prolonged periods led to erosion/corrosion of the valve seat and disk. Excessive levels of corrosives and water also produced plugging in the piping and led to the initial leak. 4. Tosco's job planning procedures did not require a formal evalua- tion of the hazards of replacing the naphtha piping. The pipe repair work was classified as low risk maintenance. Despite serious hazards caused by the inability to drain and isolate the line—known to supervisors and workers during the week prior to the incident—the low risk classification was not reevaluated, nor did management formulate a plan to control the known hazards. 5. Tosco's permit for the hazardous nonroutine work was authorized solely by a unit operator on the day of the incident. Operations e Tosco Avon Safety Procedure S-5,Safety Orders,Departmental Safe Work Permits, October 19, 1998. 11 supervisors were not involved in inspecting the job site or reviewing the permit. 6. Operations supervisors and refinery safety personnel were seldom present in the unit to oversee work activities. On the morning of the incident, prior to the fire, one operations supervi- sor briefly visited the unit, but he did not oversee the work in progress and no safety personnel visited the unit. The mainte- nance supervisor was the only management representative present during the piping removal work. The U.S. Environmental Protection Agency (EPA) similarly determined that a lack of operations supervisory oversight during safety critical activities was one of the causes of a previous Avon In the 3 years prior to the incident, refinery incident, a 1997 explosion and fire at the hydrocracker, neither Tosco's corporate safety which resulted in one fatality(USEPA, 1998; pp.viii, 65).1 group nor Avon facility management 7. In the 3 years prior to the incident, neither Tosco's corporate conducted documented audits safety group nor Avon facility management conducted docu- of the refinery's line breaking, mented audits of the refinery's line breaking,t°lockout/tagout,I'or lockoudtagout,or blinding blinding° procedures and practices. procedures and practices. 8. Tosco did not perform a management of change (MOC)" review to examine potential hazards related to process changes, including operating the crude desalteriq beyond its design parameters, excessive water in the crude feedstock," and The EPA report states: "Supervision was not present at the unit even though there had been a succession of operating problems just prior to the final temperature excursion that led to the explosion and fire." 1°"Line breaking"refers to equipment opening. "Lockoutltagout"refers to a program to control hazardous energy during the servicing and maintenance of machinery and equipment. Lockout refers to the placement of a locking mechanism on an energy4solating device,such as a valve,so that the equipment cannot be operated until the mechanism is removed. Tagout refers to the secure placement of a tag on an energy4solating device to indicate that the equipment cannot be operated until the tag is removed. 12 A blind is a piping component consisting of a solid metal plate inserted to secure isolation. "Management of change is a systematic method for reviewing the safety implications of modifications to process facilities,process material,organizations,and standard operating practices. "The desalter vessel removes inorganic salts,water,and suspended solids to reduce corrosion,plugging,and fouling of piping and equipment. IS Feedstock is material of varying constituents that is processed in a refinery. 12 prolonged operation of the bypass valve in the partially open position. Tosco memos and incident reports revealed that management recognized these operational problems and the increased rate of corrosion. However, corrective actions were not implemented in time to prevent plugging and excessive corrosion in the naphtha piping. ESA Root Causes I. Tosco Avon refinery's maintenance management system did not recognize or control serious hazards posed by performing nonroutine repair work while the crude processing unit remained in operation. • Tosco Avon management did not recognize the hazards presented by sources of ignition, valve leakage, line plugging, The involvement of multidisciplinary and inability to drain the naphtha piping. Management did not team in job planning and execution, conduct a hazard evaluation"of the piping repair during the along with the participation ofhigher job planning stage. This allowed the execution of the job level management, would have likely without proper control of hazards. ensured that the process unit was shut down to safely make repairs once it was ., Management did not have a planning and authorization known that the naphtha piping could process to ensure that the job received appropriate manage- not be drained or isolated. went and safety personnel review and approval. The involve- ment of a multidisciplinary team in job planning and execution, along with the participation of higher level management, would have likely ensured that the process unit was shut down to safely make repairs once it was known that the naphtha piping could not be drained or isolated. • Tosco did not ensure that supervisory and safety personnel maintained a sufficient presence in the unit during the execu- Tosco's reliance on individual workers tion of this job. Tosco's reliance on individual workers to detect to detect and stop unsafe work was an and stop unsafe work was an ineffective substitute for man- ineffective substitute for management agement oversight of hazardous work activities. oversight of hazardous work activities. • Tosco's procedures and work permit program did not require that sources of ignition be controlled prior to opening equip- ment that might contain flammables, nor did it specify what $A hazard evaluation is a formal analytical tool used to identify and examine potential hazards connected with a process or activity(COPS, 1992;p.7). 13 actions should be taken when safety requirements such as draining could not be accomplished. 2. Tosco's safety management oversight system did not detect or correct serious deficiencies in the execution of maintenance and review of process changes at its Avon refinery. Neither the parent Tosco Corporation nor the Avon facility management audited the refinery's line breaking, lockout/tagout, or blinding procedures in the 3 years prior to the incident. Peri- odic audits would have likely detected and corrected the pattern of serious deviations from safe work practices governing repair work and operational changes in process units. These deviations included practices such as: • Opening of piping containing flammable liquids prior to draining. ■ Transfer of flammable liquids to open containers. ■ Inconsistent use of blind lists. • Lack of supervisory oversight of hazardous work activities. ■ Inconsistent use of MOC reviews for process changes. ES.5 Contributing 1. Tosca Avon refinery management did not conduct an MOC Cause's review of operational changes that led to excessive corrosion rates in the naphtha piping. Management did not consider the safety implications of process changes prior to their implementation, such as: f Running the crude desalter beyond its design parameters. • Excessive water in the crude feed. r Prolonged operation of the naphtha stripper level control bypass valve in the partially open position. These changes led to excessive corrosion rates in the naphtha piping and bypass valve, which prevented isolation and draining of the naphtha pipe. 14 2. The crude unit corrosion control program was inadequate. Although Avon refinery management was aware that opera- tional problems would increase corrosion rates in the naphtha line, they did not take timely corrective actions to prevent plug- ging and excessive corrosion in the piping. ES.6 Recommendations Tosco Corporation Conduct periodic safety audits of your oil refinery facilities in light of the findings of this report. At a minimum, ensure that: ■ Audits assess the following: • Safe conduct of hazardous nonroutine maintenance • Management oversight and accountability for safety • Management of change program • Corrosion control program. Audits are documented in a written report that contains findings and recommendations and is shared with the workforce at the facility. Audit recommendations are tracked and implemented. Ultramar Diamond Shamrock Golden Eagle Refinery I. Implement a program to ensure the safe conduct of hazardous nonroutine maintenance. At a minimum, require that: • A written hazard evaluation is performed by a multi- disciplinary team and, where feasible, conducted during the job planning process prior to the day of job execution. ■ Work authorizations for jobs with higher levels of hazards receive higher levels of management review, approval, and oversight. 15 ■ A written decision-making protocol is used to determine when it is necessary to shut down a process unit to safely conduct repairs. ■ Management and safety personnel are present at the job site at a frequency sufficient to ensure the safe conduct of work. ■ Procedures and permits identify the specific hazards present and specify a course of action to be taken if safety require- ments—such as controlling ignition sources, draining flam- mable-, and verifying isolation--are not met. • The program is periodically audited, generates written findings and recommendations, and implements corrective actions. 2. Ensure that MOC reviews are conducted for changes in operat- ing conditions, such as altering feedstock composition, increasing w. process unit throughput, or prolonged diversion of process flow through manual bypass valves. 3. Ensure that your corrosion management program effectively controls corrosion rates prior to the loss of containment or plugging of process equipment, which may affect safety. American Petroleum Institute (API) Paper, Allied-Industrial, Chemical & Energy Workers International Union (PACE) National Petrochemical & Refiners Association (NPRA) Communicate the findings of this report to your membership. 16 1 .0 Introduction 0 n February 23, 1999, a fire occurred in the crude unit at the 1 .1 Background Tosco Avon oil refinery in Martinez, California. Workers were attempting to replace piping attached to a 150-foot-tall fractionator tower while the process unit was in operation. During removal of the piping, naphtha was released onto the hot fractionator and ignited. The flames engulfed five workers located at different heights on the tower. Four of the workers died, and the fifth was seriously injured. Three of the deceased were contractors—two were employed by a scaffold erection company, and the other worked for a crane company. The fourth fatality and the worker injured were Tosco maintenance employees. Because of the seriousness of the incident and the fact that there had been a fatal explosion and fire at the refinery 26 months earlier,the U.S. Chemical Safety and Hazard Investigation Board (CSB) launched an investigation to determine the root and contributing causes and to issue recommendations to help prevent similar occurrences. 7 .2 Investigative CSB was one of three governmental agencies that investigated the incident. The California Department of Industrial Relations, Division Process of Occupational Safety and Health (CaVOSHA), and the Contra Costa County Health Services Department also conducted investiga- tions.' The CSB incident investigation team coordinated and shared information with these two agencies. CSB examined physical evidence at the site, conducted interviews, and reviewed relevant documents (such as a report authored by FTI Anamet (1999), prepared for CaVOSHA, entitled Metallurgical Evaluation of/Naphtha Draw Line,Nalve and Analyses of Petroleum 'Through the Department of Industrial Relations,Division of Occupational Safety and Health(CaVOSHA),California administers its own workplace safety and health program according to provisions of the Federal Occupational Safety and Health Act of 1970(see 29 CFR 1910). On January 15, 1999,Contra Costa County enacted an Industrial Safety Ordinance to"prevent and reduce the probability of accidental releases of regulated substances that have the potential to cause significant harm to the public health"(Contra Costa County Ordinance Code,Ordinance No.98-48,Section 1). The ordinance includes a risk management program,a human factors program, and a root cause analysis and incident investigation program. The human factors program was not in effect at the time of the incident. Contra Costa Health Services produced a report on the incident,entitled Investigation Into the Causes of the Fire of February 23, 1999,at No.50 Crude Unit, Tosco Avon Refinery. 17 Samples From a Crude Unit at the Tosco Avon Refinery). CSB also contracted with The Hendrix Group in Houston, Texas, for assistance with corrosion and mechanical integrity analysis. The American Petroleum Institute (API) and the National Petrochemical &Refiners Association (NPRA) provided good practice information on the safe performance of maintenance work in oil refineries. In response to a CSB request, these two organizations produced a report entitled Work Authorization in Refineries (APVNPRA, 2000). 1 .3 Tosco Avon tail The Avon refinery is located on a 2,300-acre site near the town of Refinery Facility Martinez in Contra Costa County, California. The refinery has been in operation for more than 80 years; its main products are motor fuels such as gasoline and diesel. Tosco Corporation operated the Avon facility from 1976.2000, when it was purchased by Ultramar Diamond Shamrock(UDS) and renamed the Golden Eagle refinery. Tosco is the nation's largest independent refiner of petroleum products and operates seven refineries across the United States. 1 .4 Crude Fractionator and Naphtha System 1 .4.1 Fractionator The Avon facility refined crude oi12 into motor fuels; other products included propane,butane, and fuel oils. The crude unit, or 50 Unit,' was originally designed and built in 1946, and had undergone several major capital improvements. Crude oil fractionation is the initial step in the refining process. It involves splitting crude oil into portions with similar boiling points. The oil is distilled into streams, including natural gasoline, naphtha, Z Crude oil is a complex mixture of hydrocarbons that varies in composition,quality, and appearance from one producing field to another. The crude unit where the incident occurred was also referred to as the"50 Unit" 18 kerosene, diesel, and a heavy oil used as feed for the cracking unit. A series of trays inside the fractionator functions in part to condense the hydrocarbons; in some cases, the trays are used to draw off liquid products from the tower. Processing is continuous. A steady flow of crude oil is pumped into the unit, while the product and feedstock streams are continuously pumped to tanks or other refinery units for further processing. 1 .4.2 Naphtha System At the Avon refinery, naphtha was removed from a tray near the top of the fractionator (112-foot level) into 6-inch steel piping. The naphtha flowed through the piping and a level control valve, and then into the naphtha stripper (Figure 1). From there, it was pumped to storage and the reformer unit for further processing. In prior years, the stripper had been used to remove lighter hydrocar- bons from the naphtha. This practice had been discontinued at the time of the February 23 incident. However, the vapor return line remained in place. 19 Naphtha Draw rStripper d Figure 1. 4 �i r *' � T'�nr-ir►cLI b��Ia�s ` ' y ' t �a i o < m �+taP11�l�a Strip��c�I�T.zn�c°I � ,, {"I)" rn• l,�'1;-lit)) Naphtha ♦fcontrol ! to ground The valve at the •• right of manifold is the 4,inch bypass valve. 20 2.0 Description of Incident he Incident Timeline in Appendix A summarizes the sequence of activities that led to the fire on February 23, 1999, 2.1 Pre-Incident Events 2.1 .1 Detection of Naphtha Piping Leak On February 10, the crude unit was operating routinely when a pinhole leak was detected in the upper section of the naphtha piping. From the ground, the leak was observed to be small and dripping naphtha from the line through the insulation and onto a deck on the fractionator. 2.1 .2 Emergency Response and Inspection Emergency responders decided to attempt to isolate the line to slow or stop the pinhole leak without shutting down the process unit. Opera- tors lowered the pressure in the fractionator and diverted liquid from the naphtha tray. Personnel then donned firefighting "bunker gear"' and SCBAs,S and closed the block valve (valve A; unless otherwise noted, all valve and flange locations referenced in Section 2.0 are shown in Figure 2). Operators closed the naphtha stripper level control bypass valve (valve B) and two block valves(valves C and E). Later in the day, the operations supervisor' generated an emergency work order. Over the next 13 days, 15 work permits were written for a Bunker gear is flame-and heat-resistant clothing. s Self-contained breathing apparatus(SOBA)is respiratory protection worn when the breathable atmosphere may be dangerous to life or health. "At the Avon refinery,the operations supervisor,business team leader,operations shift supervisor,and operations superintendent were four distinct job titles/positions. The operations supervisor worked days and,in particular,was responsible for prioritizing and coordinating maintenance work. He or she reported to the business team leader, who managed an area of the refinery as a business unit,solved day-to-day problems, and implemented long-term projects. The operations shift supervisor(hereinafter referred to as shift supervisor)worked rotating shifts and was the direct supervisor for all operators on his or her crew. The shift supervisor provided both worst direction and personnel oversight. Shift supervision and the business team were in separate organizations at the Avon refinery and reported to different operations superintendents. 21 To Overhead Aooumulator 11.0: 1.0 prig Naphtha Draw 8"Naphtha Draw Tray jt— Gate Valve NIMMMM—C`Elev.-112'3" "A Initial Leak Point Flange 1 8"Naphtha Vapor Return Line 8"Naphtha Piping CRUDE FRACTIONATION TOWER Nomral direction of naphtha flow 12.0 psig Flange 2 CL Elev.-38'1" NAPHTHA STRIPPER 4"Bypass-Globe VAIV CL Elev.-36'2-M"— ----------------- S" _____________"8"Inlet-hate 8"Outlet-Gas It Valve alve t i Indicates Plugged T" Valve "G„ Area LCV-180 "D" Naphtha to Storage on Flow Control C6-Centerline FV-173 1 Drawing not to Scale J. 3 heat exchangers In series Naphtha Pump Figure 2. Fractionator and naphtha draw, simplified diagram at time of initial leak. 22 this job, of which I 1 met Tosco's requirements for a special hazard permit (e.g., for inspection radiography, asbestos removal, and lead abatement). Once the insulation was stripped from the piping, the leak was determined to have originated from a 0.16-inch-long pinhole perfora- tion on the inner radius of an elbow directly downstream of the block valve off the fractionator (valve A), at an elevation of 112 feet. Further inspection using ultrasound and X-ray techniques revealed that much of the piping was severely corroded and thin. Technical staff`recommended that the entire line be replaced from valve A to the naphtha stripper. 2.1 .3 Recurrence of Leak On February 13 and 17, operators observed that the leak reoccurred at the original site and that the naphtha piping was warm to the touch. On both occasions, Tosco personnel retightened the piping isolation valves (A and B), and the leak appeared to subside. On seven occasions from February 10,14, the liquid in the naphtha stripper rose to a high level and was lowered each time by operators opening the naphtha to storage flow control valve (valve J). On the last occasion, they left the valve open to the storage tank to prevent buildup in the stripper; the valve remained open until the day of the fire. On February 22, while preparing the fractionator area for hot work (i.e., cutting a metal deck to facilitate removal of the piping), the No. I operator'discovered the naphtha piping again dripping from the original leak point. The piping was hot to the touch. The shift super- visor observed the leak, and a small plug was placed in the hole. After the hot work was finished, the maintenance supervisor directed that the plug be removed. 'Two or three operators were generally assigned to run the 50 Unit. They worked 12-hour rotating shifts. The No. 1 operator functioned as the lead worker and had the primary responsibility for running the unit safely and according to specifications. 23 2.1 .4 Efforts to Drain and Replace Piping On February 16 and 17, a No.I operator attempted to drain the naphtha piping under repair using the drain lines (valves F and G) located on either side of the naphtha stripper level control valve (valve D). The attempt failed; the drain lines appeared to be plugged. Operators advised the operations supervisor on February 17 that it was not feasible to replace the entire naphtha line from the fraction- ator to the stripper while the unit was still operating, as recom> mended by the inspection group. They pointed out that the section of line downstream of block valve E to the stripper could not be isolated because there was no block valve on the naphtha vapor return line. With input from Tosco inspectors, the operations supervisor deter- mined that the downstream piping did not require immediate replace- ment. The supervisor considered removal of the line from the fractionator to the control valve (valve D) to be a safe option because of the available isolation valves and drain lines. On February 18, pipefitters again attempted to clear the drain lines (valves F and G) at the naphtha stripper level control valve by using a reaming device. However, the device broke due to the hardness of the "'1q,ll 'Ii material in the line. On February 19, the maintenance supervisor directed an operator to issue a permit for removal of the spool piece8 (from valve D to E) just downstream of the naphtha stripper level control valve. The supervi- sor was present at the job site during removal of the spool piece. The pipe was plugged solid with a dans, tar-like substance,which also contained large chunks of hard material (Figure 3). A blind flange equipped with a drain valve (valve 1; Figure 4)was installed on the downstream side of the control valve, and a solid blind flange' was attached on the upstream side of the block valve (valve E). Figure 3. Closeup of material blockage of block valve(C), upstream of LCV,150. 8 A"spool piece"is a short piece of pipe flanged on both ends to provide for ease of removal or modification. 9 This flange is a solid plate piping component used for closing an open end of pipe. 24 To Overhead Accumulator 11.0 psig Naphtha Draw Tray w- CL Elev.-112'd" „A., First Cut C L Elev.-104'6" �s' Naphtha 8"Naphtha Vapor Release Return Line --- Second Cut C i Elev.-787" CRUDE FRACTIONATION TOWER 8"Naphtha Piping 12.0psig Flange 2 CL Elev.-88'1" NAPHTHA STRIPPER Plastic Sheeting OH Plastic Pan CL Elev..--� 35'2.3/8* „;E" !i! LIC Hose Suctioning „F„ Material from Pan Indicates Plugged to Vacuum Truck Area Vacuum Truck CL-Centerline Drawing not to Scale Figure 4. Fractionator and naphtha draw, simplified diagram, draining at lower flange at time of release. 25 The maintenance supervisor and the workers decided not to remove the spool piece upstream of the control valve (from valve C to D). The supervisor determined that valve C was jammed partway open, and isolation was in doubt (Figure 5). The operator logbook stated that draining would be attempted on Monday, February 22. However, workers did not attempt to drain the naphtha piping on February 22. The hot work permit for cutting the deck—signed by the shift supervisor, the No. I operator, and a maintenance worker— stated that the piping was not drained, locked, or tagged. Figure 5. Closeup of stem of block valve The maintenance supervisor and the maintenance lead planner (C),upstream of LCV,150,with the arranged for a vacuum truck to arrive at the job site on February 23 valve wheel fully tightened. to recover the naphtha. The protruding stem shows the valve to be jammed partway open, indicating possible material blockage in the line. 2.2 The Incident 2.2.1 fob Preparation On February 2.3, supervisors, operators, and maintenance workers were aware that the piping contained liquid naphtha. Both the permit readiness sheet and the work permit identified that draining was needed. The No. 1 operator and the maintenance workers inspected the job site and reviewed equipment conditions, and the permit was signed. In preparation for draining the line, the vacuum truck was placed into position approximately 20 feet from the base of the fractionator. A metal half-barrel was placed under the flange, with the attached drain valve (valve 1; Figure 4) downstream of the naphtha stripper level control valve (valve D). A hose was extended from the truck and placed in the barrel. An operator incrementally opened valve D from the control room to assist with draining the line from valve I. Under the direction of their supervisor, the maintenance workers then attempted to open a flange upstream of the control valve. Both efforts to drain the line were unsuccessful. The maintenance supervisor told the workers present that a section of piping should be cut and removed with the crane. He tapped on 26 the line and stated that he believed the naphtha level was below the proposed cut location. He stated to the operator that listening for differences in the sound at each tap point would identify the liquid level. The operator disagreed and responded that the naphtha should be removed before cutting the pipe.10 2.2.2 First Cut and Second Cut The maintenance supervisor directed workers to unbolt the piping from flange 1, downstream of valve A, and cut a short section of line with a pneumatic saw.II The first cut into the line was 8 feet below Naphtha Or" Tray :}--CLEIaV.-i1"1- .A i [:n' ul CLENV.-1041Height-041"ei CN C 1 ENV.-707'CRUDE FRACTIONATION TOW€R a Piping ENV.-10'1' Figure b. Fractionator and naphtha draw, simplified diagram, first cut and second cut. "Witnesses in the control room in the late morning stated that the No. I operator discussed with them his argument with the maintenance supervisor prior to the fire. "The maintenance supervisor,however,denied that he was present or directed the first cut into the naphtha piping. He stated that he left the unit at 9:00 am. Other witnesses and the timeline of events contradict this testimony. For example,the verbal permit log shows the maintenance supervisor signing into the unit at 8:40 am and departing at 9:50 am. The fact that he directed the work is consistent with his actions both before and after the first cut. The maintenance supervisor acknowledged that he directed the removal of the spool piece on February 19,and the second cut into the line and the opening of the flanges after lunch on February 23—before the piping had been drained or the isolation verified,contrary to Tosco procedures. 27 valve A. A blind flange was bolted to valve A. The remaining piping was open at the point of the cut and faced the fractionator (Figure 6). For the second cut, the maintenance supervisor directed workers to start 26 feet below the location of the first cut (Figure 6). When the saw pierced the inside diameter of the pipe wall, a small amount of liquid began to leak from the line. The worker operating the saw ceased cutting and was sent to obtain a pipe clamp to seal the leak. 2.2.3 Naphtha Release The maintenance supervisor decided to again attempt to drain the line by opening flange 2, located upstream of the naphtha stripper level control valve (valve D) and within 3 feet of the fractionator (Figure 4). Workers loosened the bolts on flange 2, which allowed liquid to flow. Plastic sheeting was hung to deflect the draining liquid away from the hot fractionator and into an open plastic pan, from which it was suctioned to the vacuum truck. The personnel conducting the work did not take into account that the naphtha piping was pressurized from the running process unit due to a severe leak through a badly corroded valve (valve B). In the "U"-shaped naphtha piping configuration, the head pressure of the vertical column of liquid functioned as a seal and prevented the process pressure from being released to atmosphere out the open end of the cut pipe. Once the workers drained a sufficient volume of naphtha from the flange on the vertical run of the piping (flange 2), the pressure from the running process unit leaking through the corroded valve sur- passed the reduced head pressure in the tine. This resulted in a sudden release of liquid from the open piping at approximately 12:18 pm (Figure 4). The naphtha contacted the hot fractionator and ignited, quickly engulfing the tower structure and personnel. 28 The autoignition temperature of a material is defined as the tempera- 2.3 AUtoignition ture at which its fueVair mixture will ignite from its own heat source or contact with a hot surface, without spark or flame. Tosco's Material Safety data Sheets (MSDS) for naphtha listed the autoignition temperature as 450 degrees Fahrenheit (°F). However, the lower half of a crude oil fractionator operates at temperatures of 500 to 650°F, and the noninsulated manways protruding from the Avon refinery fractionator had surface temperatures just slightly below this range. Operators heard the naphtha ignite, used fire monitors to direct a 2.4 Emergency stream of water onto the fire, and began an emergency shutdown of Response the unit. Within minutes, the Tosco emergency response team was on scene and began firefighting efforts. The Contra Costa Fire and Consolidated Fire Departments responded and were positioned to provide support if requested. The fire burned for about 20 minutes. Rescue eff=orts were delayed because of the size of the fire, the risk of re-ignition, and the location of most of the victims on the tower. One worker was pronounced dead at the scene, and the other three victims died at the hospital. The fifth worker jumped away from the flames at an elevated location and sustained serious injuries. 29 3.0 Analysis of Incident he conduct of maintenance work in an oil refinery often involves flammable and toxic hazards, which must be carefully controlled to avoid injury to people and the environment (Lees, 1996; p. 21/2). In investigating the Avon refinery incident, CSB found problems with job planning, hazard identification and evalua- tion, unit shutdown decision making, management oversight, permit- ting and line breaking, corrosion control and mechanical integrity, and management of change (MOC). CSB used several investigative techniques to analyze the incident, including establishing a timeline (Appendix A) and developing a logic tree diagram (Appendix B). 3.1 Hazardous In process plants, hazardous nonroutine maintenance includes such activities as hot work,'I hot tap,13 and work on live flare headers as well Nonroutine ,M as line breaking when isolation and drainage cannot be ensured. The Maintenance nonmandatory appendix in the Occupational Safety and Health Administration's (OSHA) Process Safety Management (PSM) stan- dard" stresses the importance of employers identifying the hazards of nonroutine maintenance in process areas and communicating such hazards to those doing the work. The 1989 Phillips Houston Chemical Complex fire and explosion, which killed 23 workers, expedited issuance of the PSM standard. Like the 1999 Tosco incident, it involved improper isolation of piping and the failure of a valve during the conduct of hazardous nonroutine maintenance work in a running process unit(OSHA, 1990;pp.iv,ix,72). Because nonroutine maintenance is unscheduled, it may present special hazards. One such hazard introduced with breakdown maintenance, such as the job at Tosco, involves limitations on job planning(CCPS, 1995b; p. 212). "Hot work is"an operation that can produce a spark or flame or other source of ignition having sufficient energy to cause ignition,where the potential for flammable vapors,gases,or dust exists"(API, 19956;pp.2.3). '3 Hot tapping is"the technique of attaching a mechanical or welded branch fitting to piping or equipment in service,and creating an opening. .. by drilling or cutting a portion of the piping or equipment within the attached fitting"(API, 1995a; p. 1). "Appendix C of 29 CPR 1910.1 19,Process Safety Management of Highly Hazard- ous Chemicals. 31 3.2 Job Planning In the Avon refinery incident, preparatory maintenance activities such as stripping insulation and inspecting the piping began immediately after the leak appeared to subside. Job planning at the refinery typically involved a site visit and discussions among the maintenance lead planner, maintenance supervisor, and operations supervisor to identify potential problems in advance. However, this planning activity did not occur for the naphtha repair work. Just an hour after the leak was discovered, a permit was issued to strip insulation from the naphtha piping. The job was initiated without the line being locked or tagged out, depressured, or isolated, as required by Tosco procedures. If a line could not be isolated, the procedures stated that: Production, H&S, Inspection and Maintenance representa- tives must meet and agree on a safe procedure to remove the insulation. If insulation cannot be safely removed while the unit is online, the line or unit must be shut down.1I Although inspection, maintenance, and two operations superintendents were present, no meeting was held to discuss control of hazards. Not following insulation removal procedures did not directly cause the fire, but it was indicative of Tosco's practice of not consistently adhering to established maintenance procedures. Most of the preparatory maintenance work conducted in the 13 days prior to the incident was not listed in the job planning documentation, including the three permitted jobs where workers attempted to drain the piping. There was no mention that the naphtha, as a benzene, containing stream, was a serious health hazard that required specific precautionary measures; nor was it identified that a crane, vacuum truck, and pneumatic saw were to be used in the piping removal. No job-specific instructions were prepared for the naphtha piping repair work. The job planning documentation lacked necessary information, such as the MSDS for naphtha, a blind list,16 or the piping and instrumentation diagram showing where blinds were to be inserted. Good practice guidelines for maintenance job planning "Tosco Avon Safety Procedure S-36.1,Removing Insulation From Leaking Hydrocarbon Lines,November 20, 1995. "A blind list is a document that specifies the location for blinds to be installed to secure isolation of piping and equipment. 32 recommend outlining the steps necessary to accomplish the work and identifying the potential hazards of each step (COPS, 1995b, pp. 249-250; Lees, 1996, P. 21/4).17 Good practice guidelines emphasize Adequate planning is also essential for effective isolation of piping and that hazards are most effectively equipment (HSE, 1997; pp. 4,6, 13).18 Good practice guidelines recognized and evaluated in the emphasize that hazards are most effectively recognized and evaluated calm atmosphere of the in the calm atmosphere of the job planning process rather than during job planning process rather than the often stressful environment of job execution (HSE, 1985, p. 11; during the often stressful COPS, 1995c, p. 17).19 For example, for hot work-one type of environment ofjob execution. hazardous nonroutine maintenance--API states that the potential hazards should be carefully analyzed as part of pre-job safety planning (API, 1995b; pp. 2.3). Prior to conducting hot tapping, API recom- mends preparing a written plan that addresses potential hazards and performing the procedure only after careful consideration of alterna- tives (API, 1995a; pp. 1, 5). >. During planning, Tosco management did not effectively identify the serious hazards present in conducting the piping repair in an operating process unit. Despite accumulating evidence of the inability to drain and isolate the piping during the week leading up to the fire,Avon Despite accumulating evidence ofthe management scheduled the pipe removal for February 23 with the unit inability to drain and isolate the in operation and without a plan to control hazards. piping during the week leading up to the fire,Avon management scheduled the pipe removal for February 23 with the unit in operation and without a plan to control hazards. i�Although this COPS citation references unit shutdown,the practice is even more appropriate for formal consideration during the safe execution of hazardous nonroutine maintenance in an operating unit. 18These good practice guidelines were produced in the United Kingdom on a consensus basis by representatives of industry,government,and labor. "In discussing the management dilemma of production versus process safety,COPS guidelines state: "The continuity of operations can best be addressed at the planning stage. 33 3.3 Hazard Identification and Evaluation 3.3.1 lob-Specific Hazards Significant hazards existed early on in the 13-day naphtha piping repair process: ■ The job involved the removal of 100 feet of 6-inch pipe con- taining naphtha, a highly flammable liquid.21 r Approximately 80 feet of the piping ran vertically near the side of the fractionator, whose surface temperature in the lower half of the tower exceeded the autoignition temperature of the naphtha stream to be drained. • The stem of block valve C, upstream of naphtha stripper level control valve D, protruded approximately 12 threads from the valve wheel when fully tightened, indicating that the valve was partially open and possibly plugged. (Unless otherwise noted, all valve and flange locations referenced in Section 3.0 are shown in Figure 2.) • The lack of a high point vent downstream of valve A would have made it difficult to purge the naphtha piping. 21 Tosco classified the naphtha piping repair as low risk, routine mainte- nance. Management did not recognize or evaluate the inability to isolate, inability to drain, or other hazards in light of conducting the work in an operating process unit. 3.3.1.1 Inability to Isolate On three occasions prior to the fire, the naphtha piping resumed leaking at the original location and the piping felt warm to the touch, indicating that one or more isolation block valves were leaking. In each instance, the valves were further tightened to try to stop the leak. 26Tosco's MSDS for the 50 Unit naphtha stated that the National Fire Protection Association(NFPA)flammability hazard rating for the liquid was 4(on a 0 to 4 scale, with 4 being the most flammable). However,for the 15 work permits authorized for this repair,the NFPA rating either was not provided or was understated as a 2 or 3. 71 Purging the piping is important not only to remove residual material,but also to reveal possible plugging or solid material in the line,which can trap pressurized or residual liquids and gases(HSE, 1989,pp. 13.14; Metz, 1989,p. 13). 34 On February 13, a shift supervisor helped tighten the valves after the leak reoccurred. On February 17, a maintenance supervisor observed the leak reoccur and assisted operators in tightening the isolation valves. That same day, two operators told the operations supervisor and a maintenance supervisor that more than one valve isolating the naphtha piping was potentially leaking. On the morning of February 23, the operations process engineer stated that he suspected that an isolation valve was leaking. On seven occasions from February 10.14, the naphtha stripper vessel—which was located downstream of the naphtha piping—filled and operators lowered the level. On February 13, a shift supervisor log recorded that the stripper level had been lowered This log was typically read by other supervisors and was available electronically to other management personnel. The shift supervisor stated that he suspected a valve might have been leaking. Leakage through the isolation valves was the most likely explanation for recurrence of the high level in the naphtha stripper. 22 3.3.1.2 Inability to Drain Draining equipment to remove hazardous material and verifying Draining equipment to remove isolation of the line are essential safety requirements prior to mainte- hazardous material and nance (COPS, 1995a, p.310; HSE, 1997, p. 47).23 From the discov- verifying isolation of the line are ery of the leak to the fire, there were seven failed attempts to drain the essential safety requirements naphtha from the piping. Tosco supervisors and workers were aware prior to maintenance. of the following draining problems. a On February 16, a No. I operator informed the business team leader that the naphtha drain lines were plugged. On February 17, after another unsuccessful draining attempt, two operators discussed plugging in the line with the operations supervisor and z?The naphtha stripper level filling several times in 2-hour intervals,combined with recurrence of the leak,established that the isolation valves were leaking. On February 14,the naphtha flow control valve(valve J)downstream of the stripper was left open, allowing the naphtha to flow out. The stripper remained empty until the day of the fire. 2'As stated in HSE's The Safe Isolation ol'Plants and Equipment. "Bleeds and vents allow the safe depressurization of parts of the plant when it has been isolated and also enable the integrity of isolations to be checked." 35 the maintenance supervisor. The operators proposed shutting down the unit to repair the piping. The operator logbook stated that the drain valves were plugged. • On February 18, the supervisors scheduled maintenance workers to drill out the drain lines. A permit readiness sheet was sent electronically to the operator and the shift supervisor communicating that the drain valves were to be cleared with a reaming device. Permit readiness sheets were also available to management in an electronic bulletin board. After several attempts, maintenance workers informed their supervisor that the material in the piping broke the reaming tool. The operator logbook noted that the attempt to drill out the drain lines was unsuccessful. r Workers accompanied by the maintenance supervisor removed a small section of piping downstream of the naphtha stripper level control valve (valve D) on February 19. The piping and the drain lines were extensively plugged. Block valve C, upstream of control valve D, was jammed partially open. Both permits executed on February 18 and 19 to drain the piping were checked "job not finished" in the closeout section. • On February 22, the operations supervisor issued a permit readiness sheet, with input from the maintenance supervisor, stating that draining was part of the work to be performed the following day. A vacuum truck was to be used to collect the naphtha. • An operations process engineer who visited the unit the morning of the fire was aware that naphtha was still in the piping and was told by operators of the unsuccessful attempts to drain the piping. At the direction of the maintenance supervisor, draining was attempted three times on the morning of February 23. 36 3.3.1.3 Other Hazards Another hazard not identified was that the naphtha contained benzene." Because benzene is a carcinogen, Tosco procedures required that equipment be drained to a closed system, away from employees.21 Maintenance work in the presence of benzene required the use of a special hazard permit with authorization by an operations supervisor. However, Tosco management did not recognize or permit the naphtha piping repair work as a benzene hazard, and these controls were not implemented. Not following these procedures did not directly cause the fire, but demonstrated Tosco's inconsistent adherence to its procedures. The pipe removal job involved coordinating contractors and workers from different departments, and using a crane in an operating process unit. Furthermore, it required positioning workers where they were potentially subject to the hazard of a sudden release or splashing of flammable liquid. Some workers were located as high as 112 feet above ground. Opening elevated lines is particularly hazardous because of the danger of flammable liquid splashing on personnel or sources of ignition (Kletz, 1989, pp. 14-15; see also CCPS, 1995a, p. 310). Despite these serious hazards—known to supervisors and workers during the week prior to the incident—the low risk classification of the job was not reevaluated, nor did management formulate a plan to control hazards. 3.3.2 Goad Practice Guidelines for Maintenance Work A hazard evaluation is a formal analytical tool used to identify and examine potential hazards connected with a process or activity (CCPS, 1992; p. 7). The evaluation assists management in process plants in "Tosco Avon MSDS for 50 Unit Naphtha,MSDS 1001,CSB 9914-E3-023,p.2. Tosco Avon Safety Order S-29, Benzene,July 1998;Attachment 2. zs Tosco Avon Safety Order S-29,Benzene,July 1998;pp.3,6-7. 37 controlling hazards and preventing incidents. The Center dor Chemi- cal Process Safety (COPS) describes evaluation techniques for identifying hazards in maintenance activity in process plants (COPS, 1992; pp. 11, 428.430). The guidelines suggest a number of questions to be used in performing a hazard evaluation of mainte- nance work." In its good practice guide for hazard evaluation, the Institution of Chemical Engineers of the United Kingdom states: It is advisable to cover aspects of maintenance operations (with a HAZOP study), including isolation, preparation and removal for maintenance since these often create hazards as well as operability problems (ICE,2000; p. 8).27 A number of factors may necessitate a hazard review of maintenance activity, including: r Hazardous activities, such as hot work or hot tap and repair work on a live flare line (API, 19956; pp. 2-3). ■ Circumstances where existing procedures cannot be followed or where there are no applicable procedures (HSE, 1997; pp. 17- 18). • Situations where safety preconditions cannot be met, such as controlling ignition sources where flammables may be present. Good practice guidelines (HSE, 1997, p. 18; see also CCPS, 1992, pp. 428-430) recommend that a comprehensive hazard evaluation include assessment of: r Specific hazards introduced by performance of the maintenance work. ■ Potential problems in achieving adequate isolation, such as depressuring, draining, and purging. • Additional precautions, such as more frequent monitoring of the isolation, improved supervision, or contingency plans. r The feasibility of safely conducting work while the process unit is in operation or postponing the job. 'COPS guidance recommends that hazard evaluation questions include: What hazards are introduced by the maintenance activity? Is it necessary to completely shut down the process to safely conduct the repair? 21 HAZOP(hazard and operability)is a well-recognized hazard evaluation technique. 38 3.3.3 British Petroleum Grangemouth Incident An incident that occurred in 1987 at British Petroleum's Grangemouth refinery in Scotland was similar to the 1999 Tosco fire.21 The job that led to the Grangemouth incident involved the attempted isolation of a section of a live flare line to remove a faulty valve. Four workers were killed after opening piping thought to be isolated and depressured. Although the isolation valves were placed in the closed position, plugging and valve leakage prevented complete isolation of the piping. The investigation report of the Health and Safety Executive of the United Kingdom made the following recom- mendations for senior management (HSE, 1989; pp. 13-14): • Conduct a detailed hazard analysis during job planning. • Before delegating work, develop detailed job instructions specific to the particular isolation to ensure the effective draining of flammable liquids. • Maintain rigorous control over possible ignition sources in the vicinity of maintenance work. Because of insufficient job planning and hazard evaluation, Tosco 3.4 Unit Shutdown Avon refinery management did not recognize that safe conduct of the Decision Making naphtha piping repair required shutting down the process unit. Once supervisors and workers knew that the line could not be drained or isolated, the unit needed to be shut down to safely conduct the repair. CSB recognizes that the shutdown and startup of an oil refinery Because of insufficient job planning process unit can introduce its own risks; however, the safe conduct of and hazard evaluation, Tosco Avon maintenance work requires a unit shutdown when serious hazards refinery management did not cannot otherwise be controlled or when the work cannot be deferred, recognize that safe conduct of the naphtha piping repair required shutting down the process unit. "See also'Lessons Learned From an On-Plot Refinery Tank Explosion," COPS, 2000;p.I A lesson learned from the incident; "Pre-jab hazard assessment should be conducted. Removing the strainer was a nonroutine task. The job planning and control did not include a discussion of the hazards by the personnel doing the job.' 39 In spite of evidence that the line contained naphtha and was severely plugged, operations supervisors scheduled the piping removal. Multiple sources of ignition were as close as 3 feet from the repair work. Hot equipment surfaces, the most likely source of ignition, could be eliminated as a hazard only if the equipment was cooled, which required shutting down the unit. The work could not be deferred because the piping required immediate replacement. In an effective maintenance work evaluation process, CCPS recommends that management carefully consider whether it is "necessary to shut down the process completely to safely repair a piece of equipment" (CCPS, 1992; p. 429). 3.5 Management Oversight 3.5.1 Accountability for Hazardous Work Despite significant hazards, Tosco management planned and executed the naphtha piping repair work as low risk maintenance. Under Tosco procedures, the unit operator was solely responsible for authorizing this work. Operations supervisors were minimally A management system of involved in planning or overseeing the line repair. No senior accountability should include methods management or specialist personnel participated in assessing hazards. for establishing responsibility, Although inspection personnel were included in decision making evaluating perfonnance, establishing concerning the scope of the repair, their participation was limited to Feedback systems, and auditing. reviewing inspection data and determining what sections of the piping required immediate replacement. Management oversight and accountability are essential elements of an effective PSM program. A management system of accountability should include methods for establishing responsibility, evaluating performance, establishing feedback systems, and auditing (CCPS, 1995c; p. 15). At CSB's request,API and NPRA prepared a document on oil refining industry practices for authorizing repair and maintenance work. It states that for situations involving higher risk, such as hot work or the inability to isolate a leaking line, a higher degree of management scrutiny and approval may be needed: 29 "See also CCPS, 19956;p.229. 40 Depending on the degree of risk some jobs may require, at a minimum, the approval of both a senior level safety person and the operations manager to deviate from routine or defined work practices. Higher risk jobs may require a risk management team including both labor and management level persons and safety, operations, maintenance, engineer- ing, metallurgy and other disciplines depending on the nature of the work request (APVNPRA, 2400). If a multidisciplinary team and senior management had participated in evaluating hazards and determining whether to shut down the process unit to safely conduct the repair, it is likely that the job would not have been allowed to proceed and the incident would not have occurred. 3.5.2 Supervision of Job Execution w The conduct of hazardous nonroutine maintenance requires close supervision, including frequent monitoring and unscheduled checks (COPS, 1995b, p. 212; Townsend, 1998, p. 49). At the Avon refin- ery, operations supervisors stated that they oversaw activities in the process units when requested by the operators or as needed. on the morning of the incident, operations supervisors did not oversee the naphtha piping removal. The operations supervisor responsible for coordinating maintenance was not at work on February 23; the person responsible for filling in during such absences did not visit the unit prior to the fire. The shift supervisor phoned the No. 1 operator prior to initiation of the piping repair work, asking if there were any problems in the unit. The operator responded that there were none. The shift supervisor visited the unit the morning of the incident, but did not observe the piping repair activities, review the permit, or inquire about the status of the draining attempts that had been ongoing for over a week.30 Also no health and safety personnel visited the job site before the incident occurred. Despite the presence of a crane, a vacuum truck, and 3°The job description of the shift supervisor states the he or she is"accountable for everything that takes place with their crew,"including ensuring"that all equipment is prepared properly and timely,that permits are completed and signed as appropriate per scheduled maintenance plan." 41 numerous contractors, the maintenance supervisor was the only management representative present during the conduct of the repair work on February 23. A number of other deviations from Tosco procedures and good practice guidelines occurred during the naphtha piping repair activities. Although the following deviations were not directly causal to the incident, they demonstrated a pattern of serious management oversight deficiencies regarding maintenance activities at the Avon refinery: • Naphtha was not recognized as a benzene stream and a health hazard. None of the piping repair work activities adhered to Tosco's benzene procedure, which required a special hazard permit and safety precautions, such as engineering controls, a benzene regulated area, personal protective equipment (PPE), and benzene exposure monitoring. 31 • The use of a vacuum truck on February 23 was not included in the work permit, nor was a mobile entry permit issued, as required by Tosco procedures. 32 • The use of a pneumatic saw in the piping removal was not included in the work permit, another requirement under Tosco procedures.33 • Several special hazard work permits authorized for the naphtha piping repair were not signed by the shift supervisor, as required by Tosco procedures. Tosco procedures delegated to the operator the primary responsibility for identifying and controlling the hazards present in hazardous nonroutine repair. Process safety expert Frank Lees advises: It is desirable to include a caution to the effect that . . . although work may be delegated, responsibility remains with him (supervision); an indication of the levels of hazard so that high hazard situations are highlighted and those involved are prompted to consider whether there are other parties who should be consulted (Lees, 1996; p. 21/16). 31 Tosca Avon Safety Order 5.29,Benzene,July 1998. 12 Tosco Avon Procedure TRFE003,Procedure for 100-Barrel Vacuum Truck, September 1995. "Tosca Avon Procedure PFFE005,Procedure for Portable Rower Pneumatic H&ck- saw, December 1995. 42 Inadequate supervision was one of the issues the U.S, Environmental Protection Agency (EPA) investigated in its analysis of a fatal incident in the hydrocracker unit at the Avon refinery in 1997. EPA reported that inadequate supervision was a causal factor in the failure of a reactor effluent pipe and one fatality (USEPA, 1998; p. 65). The report stated that supervisor oversight of operations was deficient and contributed to the lack of adherence to emergency procedures. EPA concluded that there was no supervision at the unit during the hazardous abnormal situation, even though there had been a succes- sion of operating problems prior to the temperature excursion that led to the pipe failure and fire. 3.5.3 Stop Werk Authority Tosca workers involved in the piping repair stated that they felt pressure to promptly execute the job because the unit was the only crude unit operating at that time,3' Pressure to complete the job was also created by the presence of the vacuum truck, a crane, and contract workers. Tosco management stated that workers had the authority to stop unsafe work activity and should have stopped the line replacement Stop Work authority—though ajob. However, stop work authority—though a desirable safety policy if properly encouraged—is a less effective measure for incident preven- desirable safety policy encouraged—is a less s effective properly tion than good job preplanning for the following reasons(HSE, 1985, measure for incident prevention p. 11; CCPS, 1995c, p. 17), than good job preplanning. • It is exercised during the execution of work, when pressures to get the job done are generally greater." ■ It relies on the assertiveness of individual workers. To attempt to stop a job, a worker may need to assert a position that runs contrary to direct instructions from a supervisor. • Once the job has begun, the idling of contractors and equip- ment can result in significant financial cost to the facility, which can add to the pressure to get the job done without delay. The No.3 unit was shut down in December 1998 and was being decommissioned. ss In discussing the management dilemma of production versus process safety, COPS guidelines state:"The continuity of operations can best be addressed at the planning stage."(COPS, 1995c; p. 17) 43 3.5.4 Auditing The Avon refinery's safety auditing program consisted of undocu- mented observations (referred to as "layered safety surveys'). 36 These observations focused on worker behavior rather than measuring the effectiveness of procedures; they did not record findings, make recommendations, or track corrective actions. In 1995,Tosco conducted a documented audit of its PSM program, as required every 3 years by CaVOSHA. Tosco did not conduct a PSM compliance audit in 1998. Furthermore, neither Tosco Corporation nor Avon refinery management conducted documented audits of the facility's line breaking, lock-out/tag-out, or blinding procedures and practices in the 3 years prior to the incident. Tosco's auditing program did not record or remedy the pattern of serious deviations from the safe performance of maintenance work and proper review of operational changes in process units. These devia- tions included: ■ Opening of piping containing flammable liquids prior to draining. ■ Transfer of flammable liquids to open containers proximate to sources of ignition. Industry good practice guidelines ■ Inconsistent use of blind lists. recommend that an audit program ■ Lack of supervisory oversight of hazardous work activities. consist of documenting findings, Inconsistent use of MOC reviews for process changes. formulating corrective action to improve performance, and instituting Safety audits are an essential feedback mechanism for the effective followup controls. functioning of a facility's safety management system. Industry good practice guidelines recommend that an audit program consist of documenting findings, formulating corrective action to improve performance, and instituting followup controls (CCPS, 1995c; pp. 313, 316). Effective audits would have likely detected the inconsistent adherence to procedures at the Avon refinery and could have corrected these problems prior to the incident. 3s Tosco asserted that some other documented audits were conducted at the Avon refinery,but did not provide CSB with evidence of such audits. Interview evidence indicates that no audits were conducted other than the layered safety surveys and the 1995 compliance audit. 44 3.6 Permit System and Line Breaking 3.6.1 Permit and Procedure Deficiencies Procedure Deficiencies in two key elements of the maintenance work system- permitting and line breaking-contributed to causing the refinery fire. The Avon refinery used written procedures, including a permitting system, to prepare equipment for maintenance work. The safe work procedure, which governed the work permitting system, applied to "all low risk and special hazard work."" The opening of pipelines or equipment required permitting. The procedure stated that the opera- tor must ensure that equipment is depressured, drained, flushed, and purged of chemicals as completely as possible. The authority to approve and issue work permits was generally delegated to operators; however, some types of higher hazard work w required the approval of the shift supervisor or a health and safety department specialist. Higher hazard work included jobs that required entry into confined spaces, jobs that involved high energy hot work,3s and those categorized as special hazard (e.g., opening live flare lines, radiography, and exposure to toxic materials such as lead, asbestos, benzene, and butadiene). Deficiencies in the permitting system at the Avon refinery were exemplified by the permit issued on the day of the incident, which listed three tasks with different preparation requirements. By listing draining and removal together, the permit allowed both activities to be authorized even though draining was required before removal of the piping 39 The following deviations from good practice occurred with regard to line breaking and contributed to causing the incident: ■ Hazardous nonroutine maintenance work was executed with- out a review of the job or permit authorization by an operations supervisor. "Tosco Avon Procedure S-5,Safety Orders,Departmental Safe Work Permits, October 1998. as Jobs that might result in sparks are defined as low energy hot work. Tasks involving the use of direct Hames(such as torch cutting or welding)are defined as high energy hot work. ss Tosco procedures did not restrict work authorizations to one job per permit. 45 • Neither Tosco procedures nor the permit clearly indicated that personnel were to eliminate or effectively control sources of ignition prior to opening equipment. • No course of action was specified if the required preparatory steps for opening piping, such as draining, could not be accom- plished. 3.6.1.1 Inability to Follow Procedures Good practice guidelines on equipment opening recommend that permits and procedures provide direction as to what course of action to take if existing hazards cannot be controlled or new hazards arise (Lees, 1996; p. 21/22). If the hazards require variation from the normal level of isolation, the work should be stopped and a hazard evaluation conducted by an appropriate level within management (HSE, 1997; p. 17). Tosco's permit system and procedures did not provide direction on what course of action to take if a line could not be drained. 3.6.1.2 Identification of Specific Hazards In addition, industry good practice guidelines recommend that permits and procedures identify the specific hazards that may be encountered (Lees, 1996; p. 21/22). Neither Tosca procedures nor the permit form addressed the hazards of open containers of flaw, mables or ignition sources from hot equipment surfaces, which were as close as 3 feet from the piping removal work. Workers were directed by the maintenance supervisor to drain the highly flammable liquid into an open plastic pan with multiple sources of ignition nearby. Process safety expert Trevor Metz notes the often-unrecog- nized hazards of open containers (Kletz, 2000; p. 4). He emphasizes that open containers of flammable liquids should not be used in process plants because of the many potential ignition sources. Another potentially hazardous activity was the transfer of naphtha to the vacuum truck, which was parked approximately 20 feet from the fractionator. Tosco procedures did not contain spacing requirements for placement of the truck. Good practice guidelines recommend that 46 vehicles used for transferring flammable liquids not be allowed within at least 100 feet of sources of ignition (API, 1999; p. 9). The potential hazard of static electricity was another issue not addressed by procedures or the permit system. Just prior to the incident, a plastic pan and sheeting were used to drain naphtha from the flange located near the fractionator. Transferring flammable liquids to a container such as a plastic pan or the use of plastic sheeting—both of which have insulating properties—may generate a static electrical charge. Furthermore, splashing of the liquid may also generate static electricity (NTSB, 1999; p. 2). 3.6.2 Deviations From Good Practice Failure to drain the line prior to opening was another deviation from good practice. On several occasions during the course of the repair work, equipment had been opened prior to draining. On February 19, a small section of piping was removed before draining in an unsuccessful attempt to unplug the line. On the morning of the incident, the maintenance supervisor directed workers to cut and remove the top 9-foot section of the naphtha piping.40 Personnel working on the removal job were aware that the piping contained naphtha. Two flanges were opened in an attempt to remove the naphtha, and another flange was opened when the top section of piping was removed. Tosco procedures required draining prior to opening equipment or using a pneumatic Saw. 41 It was a historical practice at the Tosco refinery to sometimes open equipment containing flammable liquids prior to draining. When drain lines were plugged or not available, witnesses described open- ing flanges in operating process units to release flammable liquids into an open container or onto the ground. Supervisors and workers did not perceive that this departure from Tosco procedures was a serious hazard. 4'The pipe was cut using a pneumatic saw. "Tosco Avon Procedure S,5,Safety Orders,Departmental Safe Work Permits, October 19, 1998;and PFFE005,Procedure for Fbrtable Power Pneumatic Hacksaw, December 1995. 47 Good practice guidelines for process plants recommend that flanges not be opened or lines cut prior to draining flammable liquids (Lees, 1996; p. 21/26). Moreover, draining of flammables should take place through a closed system so as to shield the liquid from sources of ignition (Amoco, 1984; P. 13).42 In addition, the use of a flange to drain flammable liquids in a running process unit with nearby sources of ignition is an unsafe practice because neither the rate nor the direction of flow can be adequately controlled, and it may be difficult to quickly stop the flow if needed. 3.7 Corrosion Control and Mechanical 3.7.1 Desalter Performance I ntegrity A desalter is a crude oil processing vessel that reduces corrosion, plugging, and fouling of piping and equipment by removing inorganic salts,water, suspended solids, and water-soluble trace metals. The accelerated rate of corrosion in the naphtha piping was predominantly caused by a decrease in desalter performance and the entry of exces- sive amounts of water and corrosives into the fractionator(Hendrix, The accelerated rate of corrosion in 2000; p. 1). the naphtha piping was predominantly caused by a decrease in desalter In the year prior to the incident, the desalter was run 40 percent performance and the entry of beyond design capacity using heavier crude oils. The API gravity of the excessive amounts of water and crude feed to the unit dropped on average from 27.2° in 1997 to corrosives into the fractionator. 237 in 1998, Heavier oils with a lower API gravity are more difficult to separate from water, which impedes the desalting process. Two internal incident reports describe desalter upsets that were directly related to crude feed and vessel problems at the Avon refin- ery. A September 1998 report recommended better dewatering of the crude. A March 1998 report described a serious incident when the gravity of the feed to the unit fell to 18°API. The report stated 42 As Amoco reports: "Some equipment drains used during the shut down operation may not have permanent connections to a pump-out or closed drain system. If the material released from these drains can burn and then injure persons and damage equipment,install temporary facilities to drain the material to a closed system or another safe place." 48 that increased corrosion rates could be expected, specifically in the fractionator overhead and naphtha systems. Operating logs for the unit noted more than two dozen desalter upsets during 1998. Performance deteriorated severely late in the year when the No. 3 crude unit was shut down. A process engineer A process engineer described described the desalter performance as "hopeful to non-existent." the desalter performance as The chemical contractor for the desalter, Nalco/Exxon, also docu- "hopeful to non-existent." mented concerns about performance in a November 1998 memo, which stated that efforts to run the desalters efficiently had "never been more difficult.1143 In a memo written in November 1998, Tosco management identified several potential improvements for immediate study and evaluation. These included operating the desalter vessels in parallel instead of in series, relocating a desalter from the No.3 unit, and changing the electrolytic technology. Proposed solutions related to ongoing dewater- ing problems were also identified. Although Tosco management recognized the operational problems with the desalter, they did not adjust their equipment inspections aceordingly;44 nor did they imple- ment corrective actions in a timely way to prevent material from plugging the pipe and to prohibit excessive corrosion in the unit. 3.7.2 Corrosion Maintenance records and notations in the operator's logbook re- vealed that as early as May 1998 the naphtha stripper level control valve (valve D) did not allow sufficient flow to maintain a liquid level inside the naphtha stripper. The bypass was run in the partially open position for at least 10 months prior to the incident, and the valve became plugged with solid corrosion deposits. The piping near valve D and the associated drain valves eventually became totally plugged. Long-term use of the partially open bypass valve also made it suscep- tible to erosion/corrosion. 43 Nalco/Exxon Energy Chemicals memorandum to Tosco Corporation, 50 Unit Desalters Status," November 10, 1998. A'CSB investigators retained The Hendrix Group to examine corrosion and mechani- cal integrity issues related to this incident. The Hendrix Group found shortcomings (Appendix C)with the unit inspection program. However,CSB concluded that these problems were not directly causal to the fire. 49 Following the incident, CaVOSHA commissioned a metallurgical analysis of the failed piping and components. It was determined that the bypass valve was eroded to such an extent that—when closed—it leaked (Figure 7) at a rate equivalent to a 1.5-inch-diameter hole (FTI Anamet, 1999; p. i). It was determined that the bypass valve was eroded to such an extent that—when closed it leaked at a rate equivalent to a 1.5-inch-diameter hole. Figure 7. Leak test of the naphtha stripper level control bypass valve(B) in the closed position,showing significant water flow. The inset photo highlights the gap between the seat and disc of the bypass valve in the closed position. This gap was equivalent to a 1.5-inch-diameter hole. FTI Anamet determined that excessive amounts of ammonium chloride in the naphtha intensified the corrosive activity. Multiple analyses of residue specimens from the line were found to have very high chloride contents. This corrosive salt found its way into the fractionator and naphtha draw piping when the overhead reflux contained excessive water due to a large volume of water in the 50 crude feed. The combination of corrosive salts and water in the naphtha piping led to excessive accelerated oxidation, which produced the original leak as well as the plugging in the piping and The combination of corrosive salts erosion/corrosion in the bypass valve. CSB investigators determined and water in the naphtha piping that the naphtha line was plugged with iron oxide, ammonium led to excessive accelerated chloride, and sulfur compounds, which were either corrosive oxidation, which produced the materials or products of corrosion. original leak as well as the plugging In recognizing problems with chloride salt accumulation and plugging in the piping and erosio lcorrosion in the naphtha section of the fractionator tower, Tosco Avon man- in the bypass valve. agement developed a water washing procedure to flush chlorides from the naphtha section of the tower." _ Tosco Avon management did not conduct an MOC review of the 3,$ Management potential safety effects on the fractionator and associated piping that of Change might result from: ■ Operating the desalter beyond its design parameters. • Increasing water in the crude feed. ■ Shutting down the No. 3 unit and resulting effects on the 50 Unit. API Recommended Practice 750 recommends that refiners review hazards that may be introduced as a result of projects or changes in operating conditions that increase throughput or accommodate different feedstocks (API, 19917; p. 4), The Avon refinery's MOC program required an MOC review to be performed with a change in feedstocks.16 Moreover, Tosco's program and API 750 stated that an MOC review should occur prior to changing design conditions. A Nalco/Exxon memo in December 1998 stated that the crude feed to the desalters was further increased to 55 to 80 percent over design specifications." Not conducting an "Tosca Avon Procedure 16-MS-06,Water Washing the Main Fractionator,Septem- ber 1998. 45 Tosco Avon Safety Order S-12, Management of Change Fblicy,March 1998;p.8. 47 Nalco/Exxon Energy Chemicals memorandum to Tosco Corporation, "50 Unit Desalters Report,,,December T, 1998. 51 MOC review of changes in the feedstocks contributed to causing excessive rates of corrosion in the naphtha piping. In addition, management did not conduct an MCHC review for the process change of running with the naphtha stripper level control API 750 recommends conducting an bypass valve partially open for a prolonged period. API 750 recom- MOC review for changes in mends conducting an MOC review for changes in technology that technology that include 'bypass include "bypass connections around equipment that is normally in connections around equipment that is service" (API, 1990; p. 5). Not conducting an MOC review for normally in service." operation of the bypass valve in the partially open position for months at a time resulted in the buildup of semisolid material in the control valve piping and drain lines, as well as erosion/corrosion of the valve seat and disc. 52 4.0 Root and Contributing Causes 1. Tosco Avon refine 4.1 Root Causes refinery's maintenance management system did not recognize or control serious hazards posed by performing nonroutine repair work while the crude processing unit remained in operation. ■ Tosco Avon management did not recognize the hazards presented by sources of ignition, valve leakage, line plugging, and inability to drain the naphtha piping. Management did not conduct a hazard evaluation of the piping repair during the job planning stage. This allowed the execution of the job without proper control of hazards. ■ Management did not have a planning and authorization process to ensure that the job received appropriate manage- ment and safety personnel review and approval. The involve- ment of a multidisciplinary team in job planning and execution, along with the participation of higher level management, would have likely ensured that the process unit was shut down to safely make repairs once it was known that the naphtha piping could not be drained or isolated. r Tosco did not ensure that supervisory and safety personnel maintained a sufficient presence in the unit during the execu- tion of this job. Tosco's reliance on individual workers to detect and stop unsafe work was an ineffective substitute for manage, ment oversight of hazardous work activities. ■ Tosco's procedures and work permit program did not require that sources of ignition be controlled prior to opening equip- ment that might contain flammables, nor did they specify what actions should be taken when safety requirements such as draining could not be accomplished. 2. Tosco's safety management oversight system did not detect or correct serious deficiencies in the execution of maintenance and review of process changes at its Avon refinery, Neither the parent Tosco Corporation nor the Avon facility management audited the refinery's line breaking, lockout/tagout, or blinding procedures in the 3 years prior to the incident. Periodic audits would have likely detected and corrected the pattern of serious deviations from safe work practices governing repair work and operational changes in process units. These deviations included practices such as: 53 ■ Opening of piping containing flammable liquids prior to draining. • Transfer of flammable liquids to open containers. • Inconsistent use of blind lists. • Lack of supervisory oversight of hazardous work activities. • Inconsistent use of MOC reviews for process changes. 4.2 contributing 1. Tosco Avon refinery management did not conduct an MOC Causes review of operational changes that led to excessive corrosion rates in the naphtha piping. Management did not consider the safety implications of process changes, such as: • Running the crude desalter beyond its design parameters. ■ Excessive water in the crude feed. ■ Prolonged operation of the naphtha stripper level control bypass valve in the partially open position. These changes led to excessive corrosion rates in the naphtha piping and bypass valve, which prevented isolation and draining of the naphtha pipe. 2. The crude unit corrosion control program was inadequate. Although Avon refinery management was aware that opera- tional problems would increase corrosion rates in the naphtha line, they did not take timely corrective actions to prevent plug- ging and excessive corrosion in the piping. 54 5.0 Recommendations Conduct periodic safety audits of your oil refinery facilities in light Tosco Corporation of the findings of this report. (1999.014,1,CARI) At a mini- mum, ensure that: • Audits assess the following: • Safe conduct of hazardous nonroutine maintenance • Management oversight and accountability for safety • Management of change program • Corrosion control program. • Audits are documented in a written report that contains findings and recommendations and is shared with the workforce at the facility. • Audit recommendations are tracked and implemented, I. Implement a program to ensure the safe conduct of hazardous Ultramar Diamond nonroutine maintenance. (I 999014-1-CA-R2) At a minimum, Shamrock Golden require that: Eagle Refinery • A written hazard evaluation is performed by a multi- disciplinary team and, where feasible, conducted during the job planning process prior to the day of job execution. • Work authorizations for jobs with higher levels of hazards receive higher levels of management review, approval, and oversight, • A written decision-making protocol is used to determine when it is necessary to shut down a process unit to safely conduct repairs. • Management and safety personnel are present at the job site at a frequency sufficient to ensure the safe conduct of work. • Procedures and permits identify the specific hazards present and specify a course of action to be taken if safety require- ments—such as controlling ignition sources, draining flam- mables, and verifying isolation—are not met, • The program is periodically audited, generates written findings and recommendations, and implements corrective actions. 55 2. Ensure that MOC reviews are conducted for changes in operating conditions, such as altering feedstock composition, increasing process unit throughput, or prolonged diversion of process flow through manual bypass valves. (1999.014-t-CA-R3) 3. Ensure that your corrosion management program effectively controls corrosion rates prior to the loss of containment or plugging of process equipment, which may affect safety. (1999.014.1-CA-R4) American Petroleum Institute (API) Paper, Allied-Industrial, Chemical & Energy Workers International Union (PACE) National Petrochemical & Refiners Association (NPRA) Communicate the findings of this report to your membership. (1999-014.1-CA-RS) By the U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD Gerald V. Foie, Ph.D. Member Isadore Rosenthal, Ph.D. Member Andrea Kidd Taylor, Dr. P.H. Member March 21, 2001 56 6.0 References American Petroleum Institute (API) and National Petrochemical & Refiners Association (NPRA), 2000. Work Authorization in Refineries, prepared for U.S. Chemical Safety and Hazard Investigation Board (CSB), July 2000. American Petroleum Institute (API), 1999. Safe Operation of Vacuum Trucks in Petroleum Service,API Publication No. 2219, American Petroleum Institute (API), 1995a. Procedures for Welding or Hot Tapping on Equipment in Service,API Recommended Practice 2201, Fourth Edition, September 1995. American Petroleum Institute (API), 19956. Safe Welding, Cutting, and Other Hot Work ftactices in Refineries, Gas Plants, and Petrochemical Plants,API Publication No. 2009, Sixth Edition. American Petroleum Institute (API), 1990. Management of Process Hazards, Recommended Practice 750, First Edition, 4.2.2(6). Amoco Oil Company, 1984. Safe Ups and Downs for Refinery Units. Center for Chemical Process Safety(COPS), 2000. "Lessons Learned From an On-Plot Refinery Tank Explosion,"by K.Ann Paine, Process Industry Incidents,American Institute of Chemical Engineers (AIChE). Center for Chemical Process Safety (CCPS), 1995a. Guidelines for Process Safety Documentation, American Institute of Chemical Engineers (AIChE). Center for Chemical Process Safety (CCPS), 19956. Guidelines for Safe Process Operations and Maintenance,American Institute of Chemical Engineers (AIChE). Center for Chemical Process Safety(CCPS), 1995c. Plant Guidelines for Technical Management of Chemical Process Safety,Ameri- can Institute of Chemical Engineers (AIChE). Center for Chemical Process Safety (CCPS), 1992. Guidelines for Hazard Evaluation Procedures,American Institute of Chemical Engineers (AIChE). Contra Costa County, California, 1999. Investigation Into the Causes ofthe Fire of February 23, 1999,at No. 50 Crude Unit Tosca Avon Refinery, Contra Costa Health Services, July 1999. 57 FTI Anamet, 1999. Metallurgical Evaluation of Naphtha Draw Line/ Valve and Analyses of Petroleum Samples From a Crude Unit at the Tosco Avon Oil Refinery, prepared for California Depart- ment of Industrial Relations, Division of Occupational Safety and Health. Health and Safety Executive (HSE), 1997. The Safe Isolation of Plants and Equipment, Oil Industry Advisory Committee, Norwich, U.K.: HSE Books. Health and Safety Executive (HSE), 1989. The Fires and Explosion at BP Oil(Grangemouth)Refinery Ltd., Norwich, U.K.: HSE Books. Health and Safety Executive (HSE), 1985. Deadly Maintenance, Norwich, U.K.: HSE Books. Institution of Chemical Engineers (ICE), 2000. HAZOP, Guide to Best Practice, Guidelines to Best Practice for the Process and Chemical Industries, Rugby, U.K. Kletz, Trevor A., 1989. What Went Wrong? Case Histories of Process Plant Disasters, Second Edition, Gulf Publishing Company. Lees, Frank P., 1996. Loss Prevention in the Process Industries: Hazard Identification Assessment and Control, Vol. 2, Second Edition, Oxford, U.K.: Butterworth-Heinemann. National Transportation Safety Board (NTSB), 1999. Safety Recom, mendation H-99-42, to the International Association of Fire Chiefs, October 1, 1999. Occupational Safety and Health Administration (OSHA), 1990. The Phillips 66 Company Houston Chemical Complex Explosion and Fire,A Report to the President U.S. Department of Labor. The Hendrix Group, Inc.,2000. Hendrix Report to the CSB. Townsend,Arthur, 1998. Maintenance of Process Plant Second Edition, Rugby, U.K.: Institution of Chemical Engineers (ICE). U.S. Environmental Protection Agency (USEPA), 1998. Chemical Accident Investigation Report, Tosco Avon Refinery, Martinez, California, November 1998. 58 APPENDIX A: Incident Timeline 1. February 10, 1999,Wednesday a. 1:20 pm: A leak was detected in the 50 Unit at the first elbow of the naphtha piping leaving the crude fractionator tower (just downstream of valve A; Figure 2). b. Emergency responders arrived at the scene of the leak with firefighter personal protective equipment (PPE) and self- contained breathing apparatus (SCBA). Fire hoses and a snorkel truck were set up in case of a fire and used to wash down the fractionator tower and decks. c. The following valves were placed in the closed position to isolate the naphtha piping--the block valve on the naphtha draw line near the fractionator (valve A), block valves C and E upstream and downstream of the naphtha stripper level control valve (valve D or LCV 150), and the naphtha stripper w level control bypass valve (valve B),' The naphtha piping appeared to stop leaking. No clamp was installed on the leaking section of the pipe. d. 2:25 pm: Work began to strip insulation from the naphtha piping. The operations superintendent and the superintendent of shift operations were on scene during isolation of the line and at the beginning of the insulation removal work. e. An emergency work order was requested to replace the naphtha piping. f. The naphtha piping was inspected using ultrasonic and radiographic testing to identify the extent of wall thinning. g. 9:40 pm: The liquid in the naphtha stripper vessel rose to a high level. Operations personnel lowered the liquid level by opening the naphtha to storage flow control valve (valve J; Figure 2), downstream of the naphtha stripper. 2. February 11, Thursday a. As a result of the initial inspection, a decision was made to replace all of the naphtha piping from the fractionator to the naphtha stripper. Valves A,B,C,and E(Figure 2)are also referred to as the isolation valves. 59 b. Contract workers began erecting scaffolding on the fraction- ator to provide access to the piping. 3. February 12, Friday: The liquid level in the naphtha stripper increased again and was lowered by operations personnel. 4. February 13, Saturday a. A No. I operator observed naphtha "misting" from the hole on the naphtha line at the site of the original leak on February 10. The naphtha piping felt warm to the touch. The No. I operator and the shift supervisor tightened the isolation valves with a wrench and an extension in an attempt to stop the leak. The leak appeared to subside. b. The operator logbook noted that"the ruptured draw line is full"in reference to the naphtha piping that had been leaking. c. The high naphtha stripper level was lowered after retightening of the isolation valves (see 4.a above). The shift supervisor's log (referred to as "area notes"), available electronically, recorded that the naphtha stripper level was lowered. The shift supervisor stated that the block valves isolating the naph- tha piping might have been leaking. 5. February 13 and 14: During the night shift into the morning of February 14, the operators lowered the level in the naphtha stripper on four different occasions. After the fourth occur- rence, the naphtha flow control valve (valve J) was left open so that the naphtha could flow through the pump to storage, thus preventing the stripper from refilling. 6. February 16, Tuesday: The No. I operator attempted to drain the naphtha piping from drain valves F and G on either side of the naphtha stripper level control valve. A hose was attached to the drain valves running to the ground level. No liquid was removed. The No. I operator informed the business team leader that the naphtha drain lines were plugged. 7. February 16 and 17: The yob scope was reduced after it was determined that portions of naphtha piping could not be isolated to allow replacement of all the piping while the unit was running. 60 Tosco inspectors reevaluated the thickness data and concluded that the portion of piping between the naphtha stripper level control valve (valve D) and the naphtha stripper did not need immediate replacement. 8. February 17, Wednesday a. The maintenance supervisor observed a small stream of naphtha intermittently draining from the point of the original leak. The line felt warm to the touch, and the maintenance supervisor assumed that the block valve (valve A) on the naphtha piping near the fractionator was leaking from the fractionator. The operator logbook recorded that isolation valves were again retightened (valves A and $). b. The No. 1 operator opened the drain valves (valves F and G) on either side of the naphtha stripper level control valve (valve D). When no flow was observed, the operator used a welding rod' to attempt to clear the plugging in the drain lines. Again, no flow was observed. It was recorded in the logbook that the drain lines were plugged and could not be cleared. c. The failed attempt to drain the naphtha piping was commu- nicated by two No. 1 operators to the operations supervisor and the maintenance supervisor. The operators presented a plan to shut down the unit if the plugging could not be cleared. The operations supervisor initiated a request for maintenance workers to clear the drain lines (connected to valves F and G). d. Maintenance personnel began to sketch and detail the specifications of the naphtha piping for replacement. 9. February 18, Thursday, noon: Maintenance workers were in the unit to "unplug I-inch drain valves (valves F and G) and drain the 6-inch naphtha piping on the fractionation tower." After repeated unsuccessful attempts to drill out the plugged drain lines near the naphtha stripper level control valve (valve 'The use of a wire or rod to unplug a drain line is an unsafe procedure(Amoco, 1984; p.49). 61 D), the reaming device broke. The safe work permit was marked as `job not finished." 10. February 19,Friday a. In the maintenance work schedule report for the following week, the maintenance lead planner requested a crane to remove naphtha piping for Tuesday, February 23. b. 12:05 pm: In response to unsuccessful attempts to unplug the drain lines, a safe work permit was issued to remove a short piping spool piece downstream of the naphtha stripper level control valve (between valves D and E). This work was directed and witnessed by the maintenance supervisor, who signed into the unit for 2 hours to oversee the work. c. The spool piece (between valves D and E)was removed. The block valves (valves C and E) were not locked out. Block valve C was observed by the maintenance supervisor to be jammed partially open. The spool piece was not drained, nor was isolation of the block valves verified prior to removal. The spool piece was full of semisolid material, which plugged the line. A blind flange with a drain valve (valve l; Figure 4) was installed on the downstream side of the naphtha stripper level control valve (valve D). No attempts were made to drain the line after this activity. The safe work permit was marked "job not finished." 11. February 22, Monday a. The operations supervisor prepared a permit readiness sheet with input from the maintenance supervisor. The sheet stated, "Bigge, Interstate Scaffold, Tosco and Rust personnel to drain and start removal of naphtha draw piping." This document was available electronically and sent to the shift supervisor. b. The No. 1 operator observed the leak reoccur at the original location. The naphtha piping felt warm to the touch. The shift supervisor was brought up to the deck to observe the leak. 62 c. A hot work permit was issued to cut out a section of the deck on a platform on the fractionator tower, 107.5 feet above grade. To contain the naphtha while the cut was made, a plug was placed in the perforation of the piping where the leak had occurred. The maintenance supervisor directed the plug to be removed upon completion of the hot work. d. The maintenance supervisor and the maintenance lead planner arranged for a vacuum truck from a contracting company for the next day. e. An operator prepared a permit during the nightshift to "Erect scaffolding, drain and remove piping(naphtha draw)." 12. February 23,Tuesday a 7:20 am: A vacuum truck from Waste Management Industrial Services arrived at the unit. b. 7:40 am: Tosco maintenance employees arrived at the unit to "drain and remove naphtha piping." c. 8:00 am: A 8igge crane operator and rigger arrived at the unit to assist in removing the piping. d. 8:00 am: The operations process engineer visited the unit and discussed the naphtha piping replacement. An operator told him that several draining eff=orts had been unsuccessful and that the reaming device used to clear the drain lines (connected to valves F and G) had broken on February 18. The engineer suspected that the naphtha piping isolation valves were leaking. He was aware that naphtha was in the piping. e. 8:30 am: A maintenance worker and a No. I operator reviewed the job site and signed a safe work permit prior to the start of the job. f 8:40 am: The maintenance supervisor entered the unit to supervise the naphtha piping replacement job. g. 8:50 am: A maintenance worker signed the work authoriza- tion permit. h. 9:19.9:26 am: Maintenance personnel initially attempted to remove naphtha from a drain valve (valve I; Figure 4) in the 63 blind flange downstream of the naphtha stripper level control valve (valve D), where the spool piece was previously removed. No material was observed coming from the drain line (connected to valve 1). i. The workers attempted to wedge the flange open just upstream of the control valve (valve D). No material was observed coming from the flange. j. 9:40 am: Before the line was drained or isolation was verified, maintenance workers, the maintenance supervisor, and the No. 1 operator ascended the tower to begin cutting the naphtha piping with a pneumatic saw. The maintenance supervisor showed the workers where to make the initial cut into the piping. k. 9:50 am: The maintenance supervisor left the unit. 1. 10:15 am: The maintenance supervisor returned to the unit halfway through the first cut into the naphtha piping. m. The first cut was completed at an approximate elevation of 104 feet above grade (Figure 6). The crane was used to remove the top 9-foot section of the piping. n. The maintenance supervisor directed a second cut on the naphtha piping at an elevation of 79 feet above grade (Figure 6). The cutting was stopped when the blade pierced the pipe and a small amount of naphtha began to leak from the line. o. The maintenance supervisor attempted to locate the liquid level in the line by tapping on the pipe with a hammer and listening to the change in sound. He believed that the naphtha level was just above the location of the second cut. p. A third attempt was made to drain the piping at the location of the flange upstream of the naphtha stripper level control valve (valve D). No material was observed coming out of the flange. The maintenance supervisor and a mechanic attempted to use a scraping tool to unplug the line at the flange; however, the tool did not penetrate the hardened material plugging the piping. q. 1 1:00.1 1:30 am: The maintenance crew broke for lunch, after which the maintenance supervisor discussed possible 64 drain points and directed the workers to drain the piping from the flange closest to the fractionator (Flange 2). r. 11:45 am: The next attempt to drain was initiated at the base of the vertical run of piping close to the fractionator (flange 2), at an elevation of 38 feet above grade. Naphtha was drained into a plastic pan with the flow directed by plastic sheeting. The naphtha was suctioned from the pan with a hose connected to the vacuum truck, which was parked at ground level (Figure 4). s. 12.18 pm: Naphtha started to flow very rapidly from the line at the open end of the pipe. Hot equipment surfaces most likely ignited the naphtha. The resulting fire engulfed workers on the fractionator tower, killing four men and seriously injuring another. 65 APPENDIX B: Logic Tree Diagram Tosco Fire, Avon Refinery Intermediate event M Basic event Undevelaped event 'And'gate {a` Transfer symbol tNakers on iovnbr Oxygen present D Efforts� �� �P►�g drain ventstolkd � s,.#'" �I a s 67 APPENDIX C: Executive Summary of The Hendrix Group, Inc,, Report This report documents the result of a technical review of documents associated with a naphtha leak and subsequent fire at the No. 50 Crude Unit at Tosco Refining Company's Avon Refinery located in Martinez California and the corrosion related and mechanical integrity issues that contributed to the fire. The results of the review showed that: • The cause of the naphtha line leak precipitating replacement of the line was erosion-corrosion due to aqueous ammonium chlo- rides. The naphtha line leak, pluggage of the bleeder valves at the naphtha line control valve loop and erosion-corrosion of the bypass valve were all contributing causes leading to the incident. The control valve piping and bleeder valve pluggage and erosion-corrosion of the by-pass valve made the consequence of the incident greater, based on making draining more difficult and contributing to a greater amount of flammable liquid in the line than would otherwise be the case. The valve leak, the pluggage and the control valve erosion-corrosion were all due to the elevated levels of corrosive materials. • Inadequate desalter operation with heavy crude states directly contributed to the naphtha line corrosion by allowing excessive water and hydrolyzable chlorides to enter the fractionator tower, forming corrosive, acidic water in the top of the tower. • Water slugs entering the tower, largely from inadequate dehy- dration of the crude feed by the desalters, caused tower upsets and water flooding of tower upper trays, resulting in water in sections of the tower where it normally would not be expected, including the naphtha draw line. However, there was significant available evidence to suggest the potential for corrosion of the naphtha draw line, including: (a) Tosco incident reports describ- ing desalter problems with attending consequences of plant wide corrosion, (b) documented corrosion of fractionator tower trays in the vicinity of the naphtha draw line, (c) previous incidents of corrosion in the naphtha stripper and bottoms piping and, (d) having to drain water from the fractionator tower reflux line. • Accelerated corrosion in the Main Fractionator and in associ- ated overhead equipment had been a problem since the early 69 1980's. Tosco did not modify their corrosion control program to address continued equipment corrosion associated leaks. Tosco's mechanical integrity and inspection program failed to predict and locate corrosion problems before they resulted in leaks or emergency on-stream repairs. It was unclear from Tosco's inspection documentation what schedules were in place to conduct thickness surveys on the Naphtha Stripper draw line. Tosco had classified the line as a Class I line,with a maximum next inspection interval of 5 years, based on API 570, Piping Inspection Code. However, in their Piping Corrosion Manage- ment System (PCMS)documentation, (8/7/99) they appeared to list as much as a ten-year next inspection interval for the line.An inspection deficiency contributing to the incident,was the lack of a sufficient PCMS database at the time of the incident permitting corrosion rate determination. Failure of the corrosion control and corrosion monitoring programs to prevent events leading to the incident by practicing predictive inspection were symptomatic of. (a) inadequate management oversight, (b) inadequate or non existing documentation supporting SFARPSM,j, Mechanical Integrity, (c) insufficient inspection data documentation, (d) lack of proper inspection execution and, (e) inadequate communications between the mechanical integrity department and Unit 50 operations personnel. 70 r r i til tC? tD O co X11 U z LLJ t/3 ...,E �i; i i "One o: thc-funclions of the Dcpartmen', 0 11 Idmi'l Rel:llion" v,lo ins*(r, ,Ind cklvd:op flIc v" Hare 0 the vvlgc Marr l- ers of Cdiforn6, to improve` Owir 1vorhnq conditions, and to advance their opportuns- tic.'for prc-A!"'Ade(r I-I pi ovni-el I"' Cojl!�'P�lo On 011, Dill',vo,�rh 'poi tid—Ail tf);,'2 v,,c,rl,ac,ut.(d.flov Director's Preface ...........................:...........2 Labor Law Division of labor Standards Enforcement(DLSE).........................7 Industrial Welfare Commission(IWC} ................................10 f CA Workplace Safety and Health c- Division of Occupational Safety&Health(DOSH).......................12 Occupational Safety&Health Standards Board Occupational Safety&Health Appeals Board ..........................23 b UO Apprenticeship Training Division of Apprenticeship Standards(DAS) ..:........................25 California Apprenticeship Council(CAC) .............................30 11J _U iY LLJ California Department of Industrial Relations Uj 2000 - 2001 Biennial Report W Workers'Compensation Division of Workers'Compensation(DWC)...... .:34 Kp Workers'Compensation Appeals Board(WCAB) .. :...:' .....41 Industrial Medical Council{IMC) ...............,... 42 J Self Insurance flans(SIP)................... ..A4 Commission an Health&Safety &Workers'Compensation,.(CHSWC) .................. 45; is- •on■ Statiftics and Research; � *ii -Division of LaborStatistiu,&Research(DLSR) ........... 44' Mediation and Conciliation State Mediation&Conciliation Service(SMCS) .....'...................55 History of DIR.................................................32 Office of the Director ...........................................56 Division of Administration ........................................58 DIR Publications ..................................... .60 DIR Office Locations ............................................62 DIR Program Management .......................................64 DIR Program Functions..................................inside bark cover Photography:All photos by Robert Gumpert except page 2 by John Swanda,Donald Jones Photography, and archWe photos on pages 32.33. - Graphic Design:Michael lane&Ana Laura Guxmin,Arflu Visual CommunMtitions Group Table of Contents + 1. �: 3���, �,�� ,=F . � its co r� ... w U w t— _z w .`� C7 u� J �• �M�� ��� .. .........,. .;::.v,�-.r ns�rw v.rvrwss:�.':•MH'�fvFv-M1..Tx.:Y±-nsr.»f/�.M1eh• _.,- .... t® Y� I t6 tV+ yrs tr� V legislation that further secured the rights of some of of its fatalities.Programmed inspections allow Cal/OSHA L1) California's most vulnerable workers, staff to remedy workplace safety and health hazards U Protective legislation for farm workers Increased verifl- before they result In Injury or death. > cation of farm labor contractor licenses,and established a Cal/OSHA launched its rapid response team in Los Lu program of state and local enforcement units to prosecute Angeles during 2000 in cooperation with the district attor- violators of labor law.Other legislation allowed a portion ney's office to more accurately reconstruct the events lead- Z z of farm labor contractor licensing fees to be used for darn- Ing up to serious workplace Injuries and fatalities.Rapid LLL p- ages stemming from labor law violations.New legislation response team members,charged with promptly invest)- Z also Instituted for the first time an employee labor rela- gating workplace death,serious injuries or employers who (1J tions process for backstretch workers employed by the knowingly,negligently and repeatedly violate safety > state's racetracks and provided for adoption of housing orders,prepare documentation for the district attorney In standards by the California Horse Racing Board and annu- cases that may require prosecution under California labor t1) al inspections of that housing.Other legislation addressed law.Team members who receive special training in the working conditions,hours and pay of sheepherders Investigative skills--must already have shown a breadth of J employed in California.In addition,the Legislature enact- knowledge that prepares them for a job that often requires ed the Displaced Janitor Opportunity Act and set require- a 24)7 commitment. "Rr mens for the retention of employees by janitorial or In 2000,California extended Its commitment to work- building maintenance services and subcontractors by a place safety and health by creating a young worker safety Just successor contractor for 60 days when the previous and health resource network.DIR has contracted with the all employer had lost the contract. Labor and Occupational Health Program(LOHP)at the University of California,Berkeley to establish a resource Workplace safety and health center that will provide information and technical assis- Cal/OSHA expanded Its efforts to increase compliance and tance to young workers,educators,employers and parents to prevent accidents and fatalities In high-hazard Indus- to support workplace safety.The center has developed a tries by launching In 2000 the Construction Safety and Web site at www.youngworkers.org that contains safety Health Inspection Project(CSHIP),counterpart to its suc- tips relevant to Industries such as construction,retail, cessful Agricultural Safety and Health inspection Project restaurant,hospitality and agriculture that employ large (ASHIP)mounted in 1999. numbers of California youth,particularly during the sum- Both Industries employ a significant percentage of mer months.In addition,the department works with the immigrant workers not necessarily knowledgeable about governor's office to issue an annual proclamation dedar- California workplace rights.The construction Industry,for Ing May as Safe Jobs for Youth Month.The proclamation example,which employs approximately 5 percent of the and month serve as a focal point immediately preceding state workforce,nonetheless accounts for up to 20 percent the entrance of young Californians into summer jobs for Director's Preface I 3 re Y- a> tis c� r� v department efforts to promote young worker safety and child care apprenticeship.In 2001,the division collaborat- W health.Along with DIR,I,OHP has coordinated participa- ed with employers,labor organizations and other govern- U tion in this effort among trade associations such as the went programs to host an apprenticeship fair at the site of > California Chamber of Commerce and the California the Rosie the Riveter World War fI Horne Front National *y W Restaurant Association,among other government programs Historical Park in Ricbmond that drew at least 20 repre. affiliated with the Employment Development Department sentatives from apprenticeship programs and almost 600 Z Z and the Department of Education and among the PTA and high school students from the Contra Costa Unified W labor organizations such as the California Teachers School District. Z Association and California Federation of Teachers. Since 1999,enrollees in California apprenticeship pro- W Meanwhile,10 new California sites were Inducted into grams have jumped from 60,403 to 66,152,a clear Indica- > the California Voluntary Protection Program tion that department efforts to promote apprenticeship (Cal/VPP)—bringing the total number of inductees to through new collaborations with the Employment C/) 20--because of their rigorous commitment to workplace Development Department's one-stop centers,the safety and health.CaIJVPP,a voluntary program initiated Workforce Investment Board,publication of the California W by Cal/OSHA and imitated by the federal government,Is Apprenticeship Council's apprenticeship guide for educa. aimed at recognizing those employers who achieve a high tors and through consistent mailings to high schools level of excellence in establishing safe and healthy work- throughout the state are bearing positive results. *I;* f places.Inductees during the last two years Included the •its first construction company,the Concord-based Swinerton Workers'compensation Are Builders,In a pilot project Voluntary Protection Program. Over the last two years,the Division of Workers' Swinerton and the unions representing Its workers,the Compensation has worked with constituency groups to operating engineers,carpenters and laborers,was the first reform the workers'compensation system based on con- construction company Inducted under requirements and stituency needs,studies that recommended greater effi- qualifications that recognized the mobile nature of con- ciency in the system and In response to the consolidation struction projects. of the workers'compensation insurance industry that resulted from Its deregulation in 1993. Apprenticeship By early 2002,the Legislature enacted and the gover- In the Division of Apprenticeship Standards,apprentice- nor signed a workers'compensation reform bill,Assembly ship standards were strengthened and apprenticeship pro- Bill 749,authored by Assemblymember Thomas Calderon motion more targeted to underserved populations,a task and Senate Pro Tem John Burton.The legislation increases facilitated by the Issuing of a gubernatorial proclamation benefits for injured workers.By 2006,the maximum bene- each year declaring October as Apprenticeship Month.The fit level for temporarily disabled workers will be indexed, division,for example,is working with child care providers preventing the erosion so common during the 1990s.The and educators to increase its standards and implement a legislation contains reforms that control prescription drug 4 Direttor's Preface i=J4t 4'- r 'W'ryh W costs and support medical cost containment through med- meet opportunities of Californians over the years.Now, UJ Ical case management programs that maintain quality care every worker employed in California--whether document- () for injured workers.AB 749 also incorporates the best ed or not--is protected by a minimum wage of$6.75 per thinking of studies that show that an injured worker recov- hour and with some few exceptions,daily overtime. UJ ers best financially and physically when hear she returns Apprentices can expect quality training and protection for U) to work as soon as medipCly.possible.The legislation offers their hours and working conditions.Cal/OSHA has economic incentives such as wage subsidies for early return emerged as the premiere state health and safety program H to work,premium rebates for sustained return to work and in the nation,with Its recognition of outstanding employ- z reimbursement for workplace accommodations. ers through Cal/VPP,its free-for-the-asking consultation LV Finally,the legislation creates a special state unit with- service and hefty fines that successfully serve as deterrents > In the department to educate employers and health pre to those few employers who Ignore the state's workplace professionals about the best ways to help Injured employ- safety and health laws.Legislation has improved the bene- ees return to work as soon as possible. fits of the workers'compensation system,while mitigating employer costs. W Promoting Opportunities Our achievements are many and due in large part to As DIR approaches its 75th anniversary,we renew our cont- the efforts of DIR staff,committed and skilled workers mttment to California workers and employers to ensure., empioyed throughout the state in making a difference in their workplaces are lawful,safe and healthy.We renew our the lives of Californians. not determination to improve workforce training and increase Opportunity Is the promise that nourishes individual is opportunities for young Californians by alerting them to and community prosperity in California.Along with every apprenticeship opportunities.Finally,we renew our efforts Californian with dreams,ambition and hope,we at DIR to Improve the workers'compensation system so It serves pledge to continue fostering opportunity in California both injured employees and their employers. workplaces. DIR,formed in 1927 when the precursors of the divi- sions of Labor Standards Enforcement,Workers' Compensation and Occupational Safety and Health joined with the Industrial Welfare Commission and the Industrial Accident Board,has overseen consistent Improvements In the working conditions and employ- Director's Preface I s y S k+ �t t. ` � 3 i yy.a•"w� • # , ��`..}{._ }1'A. try' � • a v' r' M apprenticeship Division of Apprenticeship Skt rm ords Colifornio ApprctliiceShip CoUllcil , Division of Apprenticeship'Stan'dards DAs California apprenticeship system he Division of Apprenticeship Standards adminis �Yri u 4 ICA06rnfai apprenticeship programs�b�+iridifs#ry tens California law governing standards for wagesu.. hours,working conditions and training required for all state registered apprentices,leading to a state issued ConrtnKtion 18% Manufaauring 21% certificate of completion when all aspects of the appren- r� tice's training are satisfactorily completed and joumServices 3596eylevel 0) status achieved.DAS annually awards completion certlff- cater to the graduates of the 1,568 currently active appren- (D ticeship programs In more than 200 occupations. C7 DAS goals are twofold:to match the needs of work00 - :, 00 ers—for the skills to get and keep a decent paying job— with those of employers—far motivated workers with the Public sdrnini:traUa,t6% skills to do the job;and to strengthen the apprenticeship Retail Trade 6% Transportation&Utilities 2% W U alliance among industry,labor,education and govern- pts 2% meat for recruiting workers and teaching the skllls they W and their employers need. f/) Professional staff of the division establish new appren- tice registration procedures,a wage progression for appren- � ticeship programs In any of the 800 recognized appren- tices,and completing the elements comprising apprentice- LV ticeabie occupations.DAS works with the apprenticeship ship program standards.They arrange for payment of vet- F- Z program sponsors and monitors their on-the-job training erans training benefits to eligible apprentices,and assist in coupledwith related instruction to ensure the high stain outreach activities to attract apprentice applicants. 7 dards set by the division. The 66,152 apprentices in California are maintaining a time-honored system that has proved adaptable to change. Consulting locally on new apprenticeships As some traditional jobs disappear,new high-tech and U) From offices around the state,DAS consultants work local- service jobs take their place,and California'$apprentices W ly with employers—and their collective bargaining part- are achieving a higher level of skills than ever before to "J ners where applicable—to develop new apprenticeship earn a living In the global marketplace. 4*4 programs,determining the length of training and spedfic skills necessary to perform at the levet required In the Keeping track •se r occupation.,Trey help the new program sponsors locate The division's program planning and review unit reviews mat and make arrangements with local education agencies to all new and revised apprenticeship program standards for provide the classroom instruction that augments the on- compliance with California apprenticeship law.The the-job training. records unit fulfills a vital role as centralized record keeper DAS consultants can also help new sponsors with the for active apprentices statewide,In addition to graduates standards for their program operation,as well as appren- in the last 20 years or more. ft Appren8ces _ c Ai fir, s � 7�.uu/ d tl�4 6w4* ?' 2Ob .,TO Total 49,468 52,445 60,403 63,859 66,152 Non-minority 24,960 25,923 28,882 29,876 29,926 (50.5%) (49.4%) (47.8%) (47.8%) (45.2%) Minority 24,508 26,522 31,521 33,983 36,226 (49.596) (50.6%) (52.2%) (53.2%) (54.8%) women 5,266 5,006 5,422 5,353 4,920 (10.6%) (09.596) (09.0%) (08.4%) (07.4%) Apprenticeship Training I 25 standards necessary for preparing apprentices for the Contributing to One-'Stop Centers z, ,. ,- .. a� s .,a,,.r..': ...�.. x,r.±.4 --•', workplaces of the future,and to prevent apprentice California's apprenticeship system is one link of the Califomis Workforce exploitation by employers or program sponsors. Investment Board's(CWIB)federal Workforce Investment Act(MA)One- The first programs for audit were randomly selected in Stop Centers located throughout the state.The centers provide a full range September 2000.By Sept.30,2001,104 audits were Initi. of services for job seekers and employers.CWIB staff are working with DAS, ated,of which 56 were simplified audits of programs with the California community colleges and Department of Education to link fewer than five apprentices,and the remainder were full apprenticeship programs with training and services offered through the audits.As a result,31 of these programs were cancelled one-stop system. due to inactivity.By Dec.31,2001,11 final audit reports were completed,34 proposed reports were being finalized, DAS provides the CWIB with apprenticeship promotional materials such as 28 other audits were in progress and 21 additional pro,Opportunity is Knocking posters,The Apprentice newsletter and the video r' grams had been randomly selected for audit. Apprenticeship Califomia's gest Kept Secret. r Public Works enforcement to CO, DAS verifies apprentice registration and*status,and (0 DAS also provides statistical reports to the federal 0 Apprenticeship Training,Employer and Labor Services,the enforces requirements of Labor Code section 1777.5 man- 0 U.S.Veterans Administration and other Interested parties. dating employment of apprentices on all public works protects.DAS monitors these projects by Investigating the Auditing to maintain high standards complaints filed with the division.When an Investigation Recent legislation strengthens the regulation of appren- reveals a violation of the law,DAS may assess a civil U penalty or debarment for up to three years,depending ticeshtg programs In California by providing for audits of i DAS-approved program#to ensure they meet the high upon the seriousness or recurrence of the violation. W From Jan.1,2000 to Dec.31,2001,the division received 1,204 complaints alleging violations of appren- ~ Z ticechip law on public works projects.Of the total,232 UJ complaints were withdrawn or dismissed without merit, Z and notices of violations were Issued on 39.Three debar- "�" ments were Issued. > Apprentice complaints CO The division's investigations unit also handles complaints or appeals filed by apprentices regarding their program J sponsors.Following conclusion of investigations and hear- Ings,a formal determination is Issued by the administrator of apprenticeship,DIR's director.From Jan.1,2000 to Dec.31,2001,the division received 37 complaints from �ails apprentices who charged that actions by their program ar sponsors were unfair or unreasonable,ranging from selec- tion procedures to dismissal from a program.Of these cases,12 were dismissed for lack of merit or withdrawn by the complainant.One case is set for hearing and another is on appeal to the California Apprenticeship Council. The remaining cases are still under investigation. Training fund created by legislation Assembly Bili 2481(Romero)revised statutes on collec- .tion and distribution of apprenticeship training contribu- tions received from employers on public works projects. fx DAS collects training contributions and deposits them into a new Apprenticeship Training Contribution Fund.At P the end of each fiscal year,commencing In 2002,the diva. sion distributes grant funds to approved apprenticeship 26 I Apprenticeship Training .._..,,.,..R...,......... ...... ..............:......: _,,.,.x �:aN._.:.�-c.•aYt�{�w`::.."�'a"r_`�t:::ti_.�assN,a:w»Wsa�w.ric. Rosie Y Promoting women's participation in construction trade They put me 40 feet down in the bottom of the ship to be a apprenticeships is the goal of a coalition of labor and govem• tacker.I filled the long seams of the cracks in the ship comer meat groups,including OAS,as they plan events aimed at' full of hot lead and then brushed them good and you could local high school girls and community college women.One see how pretty it was.The welders would come along and event was a celebration at the newly-dedicated Rosle the weld so it would take the strong waves and deepwater and Riveter Memorial in Richmond,California. heavy weight.I liked it pretty good." Dedicated in October 2000 during a ceremony that attracted The celebration began a statewide campaign to increase the 100 Rosies,the Rosie the Riveter memorial honors those six number of women in construction trades apprenticeships and million women who during World War 11 traded In their pots, coincided with Women's History Month.Along with guided pans and brooms for wrenches and welding rods to support tours of the monument,the event offered apprenticeship .� the defense industry.The Kaiser shipyards in Richmond information booths and hands-on demonstrations In"ding, � t9 served as a magnet for the migration of women from home heavy equipment operation and ironwork.A program fees- to-workplace.:' tured Rosies,tradeswomen and the premiere of an oral-histo: This memorial,the only one in the nation honoring women's ry film about women employed in the defense industries dui00 - In world War It. contributions to the World War 11 home front,helps illuminate g the lives of defense industry workers such as Katie Grant She The celebration was sponsored by Tradeswomen Inc„Contra W moved with her husband and Infant daughter from Oklahoma Costa Central Labor Council,City of Richmond,State to Calffomia in 1943 to pack fndt before ending up at the Building and Construction Trades Council of California,the Richmond shipyards while her husband sewed in the Pacific Department of Industrial Relations and DAS,the Employment W fn with the Marines. Development Department and RichmondWorks,One Stop "1 worked the graveyard shift 12-8 a.m.in the shipyard," Downtown,U.S.Departmentof labor Women's Bureau. LU Region'K,Glazlers Local 718 and the law firm of Kazan; Grant wrote Inm ,a short. emotr."i took classes on how to Z weld,1 had leathergloves,leather pants,big hood,goggles =McCixin,Edises Simon and Abrams, LIJ and a leather jacket They said you weld like you troches V) LLJ to B, a 4 J.p* Apprenticeship Training 27 programs in the craft and geographic area each serves. education and child development.According to a recent During 2001,training fund contributions from contractors study by the National Economic Development and Law on public works jobs totaled$1,142,149. Center,total employment In the California child care Industry exceeded employment levels in legal services and job training for veterans computer and office equipment industries.urograms DAS monitors job training programs for veterans,under a developed under the new standard are designed to meet federal contract with the U.S.Department of Veterans the demand for skilled,trained child care professionals. Affairs,to make sure veterans receive their educational benefits.The federal/state partnership dates back to the GI Developing electrician certification program Bill of Rights signed into law In 1944.In Its advocacy.role Legislatively required to establish and validate minimum the division is responsible for: standards for the competency and training of electricians h •urogram approval,evaluating the training quality through a system of testing and certification,DAS according to state and federal criteria,revising to appointed an advisory committee that submitted recom- r remain current with rapid technology changes and mendations for the program's Implementation. school-to-work programs in June 2001 proposed regulations were mailed to all electrical contractors In the state.DAS held a 45-day pub- •Facility oversight,classroom and training center visits 0 to determine compliance with state and federal regula- lic comment period and public heari00 ngs for input,Impar- „_„ tions and evaluate new programs eled 36 subject matter experts and appointed seven mem. •Liaison,acting as the state Ilafson between military bers to a subject matter expert executive committee,all of UJ whom met regularly to produce a test bank of questions. () Installations and schools,employers,labor groups and state veterans organizations to provide information Pilot testing was held In July.2W1 throughout the X and promote GI Bill use state.Development and validation of the test is complete. W DAS is working on modifications to the proposed reguta- •Contract management,establishing a plan of opera- tions,vendor selection for the test administration portion tion,performance standards and employee qualifica- of the certification process,and—with assistance from DIR tion standards to ensure effectiveness,and providing information services-developing a database to help required reports. process the thousands of applications.Testing for certifica- W tion is planned for several locations around the state dur- > Expanding child care apprenticeships htg the summer of 2002. Boosted by a$350,000 federal grant,DAS Is expanding and U) Improving California's child care apprenticeship programs W in response to the well-documented shortage of employees On DAS in the early childhood field.The division is receiving the input of members of the child care industry,labor organi- zations,child care advocacy organizations and state regula- t js9 nnzwf t" tory bodies.The current DAS apprenticeship in child care •� requires 2,000 hours of on-the-job training and 120 hours per year of related and supplemental coursework. The newly established Child Care Apprenticeship Advisory Committee advises DAS on issues such as licensing standards for staff employed at publicly and privately fund ed licensed child care centers and family day care homes, Integrating educational standards with the registered child care apprenticeship standards,and addresses wage,benefit and longevity concerns of workers and employers at child care facilities.The committee also advises DAS on establish- Ing career ladders among the child care occupations and on proposed expanded apprenticeship standards. DAS expects the new state standards to meet or exceed the federal child care apprenticeship standard of 4,000 hours of on-the-job training and 144 hours per year of related and supplemental Instruction in early childhood 29 Apprenticeship Training The foundation of Cal�fornia's apprenticeship system !A , . !:J t;—'. 7� x • ` � � gl ••7 p�V,'ih�l f ,pj>n*raft f a, pari ,rd ,i.nd fi f t, tt,of,f a .•DI.,fu! 'fi' g as 6 fl; 1I n t ..�.., � u.,ii. ,.�,c.i;t .i, c r ht. .,.. �tt,t.. .. ;.. � �•Frt �a '�.ux �� - ,"s, ✓�R ` -� t,,i f tft-v:�a sr r.t z=n sx � z tho't uut r ur <!t rt,f;lf an sy ' f< 0 " � t, Cal�fc�rn�a,A prenticeship=Council CAC Apprenticeship program policy Established by the 1939 landmark Shelley-Maloney increasing graduation rates while giving students expand- Apprentice Labor Standards Act,the California ed career options. Apprenticeship Council sets policy for the Division With CAC,DAS developed a strategy to make appren- of Apprenticeship Standards(DAS).The 17-member coun- ticeship opportunities available to high school students, cil Is comprised of six employer,six employee and two expanding the apprenticeship concept beyond its tradi- public representatives appointed by the governor,plus tional forms and participants.Pilot programs partnering one representative each of the chancellor of the California schools,students and businesses introduce a proven career t0 community colleges;superintendent of public instruction, system,while business gain access to a work force of and director of industrial relations as administrator of energetic and motivated young people. apprenticeship.The DAS chief serves as secretary to the Encouraging students to stay In school and graduate, co council,and the division provides staff assistance to the the program begins preparing them for transition Into CAC and Its subcommittees. selected career figlds through part-time,paid on-the-job The council meets quarterly in different locales training while they are still In school.The apprenticeship U around the state to address Issues affecting apprenticeship agreement outlines job-specific training to be provided by in California: employer and school.Upon graduation,the student con- Lij •Receives reports from the DAS chief and other cooper- Hnues In the apprenticeship program with full-time U) ating agencies employment and further classroom instruction In the •Provides policy advice on apprenticeship matters to community college system or adult education until the LU the administrator of apprenticeship term of apprenticeship is completed. z • Ensures selection procedures are Impartially admints- LU Guiding educators 5 tered to applicants Published in January 2001,Orientation to Apprenticeship. •Conducts appeals hearings on apprentice agreement A Guide for Educarors was developed at the initiative and disputes,new apprenticeship standards for approval, under guidance of the CAC.The council's School-to- D and apprenticeship program administrationCareer/Apprentic-eship ad hoc committee was given J •Adopts regulations carrying out the intent of appren- responsibility for producing this booklet that Introduces ticeship legislation. educators to career opportunities through apprenticeship ` training for young people. a�`1 School-to-Career/Apprenticeship The guide presents course outlines for curriculum sup- •taEE The CAC is represented on the employerflabor committee porting apprenticeship opportunities for students and rim of School-to-Career,a network of local partnerships Incudes a list of apprenticeable occupations,detailed Involving parents,educators,business,labor and commu- Information on apprenticeship training and other sugges- nities in a method of teaching that prepares students for tions for preparing students for an apprenticeship program. college and the job market by Integrating academic stud- The booklet has been distributed to thousands of career ies with real-world applications and work-based learning counselors and other school staff throughout California. experiences.Work-based learning includes job shadowing, Interning with local employers and organizations,and participating in school-based business enterprises. School-to-Career/Apprenticeship differs markedly from other work experience programs:all on-the-job training Is paid,and the agreement signed with the employer is a commitment to continued employment and training upon the student's graduation.California's apprenticeship training system is a natural fit with school-to-career,eas- ing the transition from education to employment and 30 ( Apprendreship Training "A &WAR UTILITY BRICK UTILITY f'SK ER STM PA JOHN DALRYMPLE,Executivo Director PAMELA AGUILAR,Pnwldo�t RUBBERCHEMICAL OIL OIL Ott. ER CK UTILITY CHEMICAL CANNING C ---&-rV', ' abor Council of Contr CosiaCounty em AFL- CIO EDUCATION tAGKiNO CAN FEDRAMON OF LABOR AND CONGRESS OF INDUSTR GANIZATIONS —*-CAUEMNIA LABOR FEDERATION, 1333 PINE STREET,SUITE ARTIN�� A41"CUL fill P.O.BOX 309 sets MAILING ADDRESS. TELEPHONE. MM nesday MARTINEZ,CA 90M FAX- (SM 226-02241 r Tuesday, November 05, 2002 Statement from John Dalrymple, Executive Director Of the Contra Costa Labor Council, on the Amendment to the Industrial Safety Ordinance. Hello, my name is John Dalrymple, Executive Director of the Contra Costa Central Labor Council. I'm here representing over 85,000 members of the AFL-CIO in this county. There are few issues that concern my membership more then the question of safety in our chemical plants and refineries. As such, it is very significant that before you is a proposal that has the best of what both the workers in these plants and the refinery owners have proposed to strengthen the County's Industrial Safety Ordinance. The proposal before the Board of Supervisors includes the key ingredients of the proposed ordinance suggested by County refineries: • Refinery contract workers will have to complete the Bay Area Training Corporation Safety Orientation program. • Lead workers or independent workers in metal crafts at refineries will have to have passed the Oil Refinery Safety Skills Program. • Contract workers will be subject to random and "for cause" drug and alcohol testing. • Refineries will have to consider a contractor's safety record when contracts are awarded. Thus, the essential features of the refinery's safety proposals would be adopted. With respect to worker skill requirements, the proposal before the Board of Supervisors contains the main features suggested by the Building Trades and would require workers to be enrolled in or graduates Joint Apprenticeship and Training Committee �.. For The Electrical Industry Of r CONTRA COSTA COUNTY, CALIFORNIA nuou rn.ri..a.. tete of the Secretary: 1875 Arnold Drive Martinez, CA 94553-4239 Phone 925/228-2302 Fax 925/228-0764 November 4,2002 RECEIVED John Gioia Chairman, Board of Supervisors NOV 5 2002 651 Pine Street Martinez, CA 94553 CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. Dear Supervisor Gioia: Meeting the training needs of our members and the electrical industry is the primary goal of the Contra Costa County Electrical Joint Apprenticeship and Training Program. In response to your question about how our training program addresses the unique industrial and petrochemical environments, let me list some examples about our five year electrical apprenticeship program. Our state registered standards provide for 2000 hours of industrial on- the-job training, including wiring of all industrial buildings and equipment; the maintenance, repair, and alteration of the same; and the necessary shop work and preparation. In fact, our training program has a particular focus on electrical work needed for refinery maintenance and repair. The apprenticeship program requires a total of 8000 on-the-job hours with training in many different aspects of the electrical industry. In addition to apprentice on-the-job training, the apprentices attend school for five years which includes one night of theory and one night of lab classes each week during the semester. Although each of the five years of curriculum have lessons relating to maintaining electrical installations, the fourth year and fifth year devote a semester each, to installation,troubleshooting, and maintenance in the industrial sector for motor control, programable controllers and instrumentation. Ongoing Journeyman training is also available to all of our members so they can keep pace with the electrical industry changes as they occur. If you have any questions,please contact me at 925/372-7083. Cerely, • Greg J. Arcidiacono Training Director GJA# opeiu429/afl-cio ,jec\ Mga\admsappr cc: Michael Yarbrough, IBEW Local 302 UA LOCAL 342 JOINT APPRENTICESHIP AND TRAINING 'rWm � _98.5 0e.*+r& wurey 66woA4 ,94SfN,2S0f �;. da s arr e�vr cud 'ewt�rYtba eadrsmase, oww IRS)686.0730 fax:(M)68S."8 November 4, 2002 John Gioia Chair, Board of Supervisors 651 Pine Street Martinez, CA 94553 RE:Amendments to Industrial Safety Ordinance Dear Supervisor Gioia: I am the Training Coordinator for the Plumbers and Steamfitters Local #342 Joint Apprenticeship and Training Program. The apprentice program for pipefitter / steamfitter is a 5 year training program. The apprentices are required to complete 1080 hours of classroom training and 9000 hours of on-the-job training. Our classes are all registered as Diablo Valley College courses, and our instructors are California credentialed teachers. The program has been approved by the California Apprenticeship Council and is subject to audit by the Division of Apprenticeship Standards. The annual budget for our training program is in excess of $2,000,000. The training for the pipefitter/steamfitter classification is focused on industrial work, with a great deal of the training specifically applicable to both refinery new construction and refinery maintenance. This training includes training in the installation, maintenance, rehabilitation, and demolition of pumps, heaters, coolers, heat exchanges, condensers, steam piping and related equipment, message tubing, vacuum tubing, instrumentation and control piping, oil bumers, stockers, fuel gas burners, tanks and related equipment The training in these subjects requires at least 4,500 hours of on-the-job training. In addition, our training program includes all welding process related to the installation maintenance, rehabilitation and demolition of high pressure piping, pipe bending and pipeline work. The on-the-job training hours for this component of our training program is at least 1500 hours. All of this training is specifically relevant to refinery work including new construction, turnarounds, maintenance, and refinery repair. Assuming that an apprentice worked an average of 2000 hours per year, it would take one of our apprentices at least three years to acquire the skills necessary for this work. In addition, the apprentice would be required to undergo a significant amount of classroom work on these subjects and the apprentice would have to complete both written and manual tests. I hope this information is helpful to your deliberations. Sincerely, Bill Blalock Training Coordinator AA ss ✓� / L�- U PERMANENT PROVISION--.Tourney Level Workers Contractors shall only hire journey level workers in an apprenticeable occupation who: Have successfully completed all of the Have obtained a certificate of equivalent tests required to graduate from an training by completing a test consisting of a apprenticeship program for that written exam and manual skill occupation approved by the CAC demonstration Test is Test has been approved administered by a ©r by the CAC and bona fide administered by an apprenticeship accredited four or two program year public college All contractor employees (in the skill areas of electrical,metals,rotating equipment and instrumentation)must complete the BATC Safety Orientation Program.* All contractor employees (in the skill areas of electrical, metals, rotating equipment and instrumentation)that work independently and/or who are lead workers must pass an Oil Refinery Safety Skills Test Program administered by BATC.* All contractor employees (in the skill areas of electrical, metals,rotating equipment and instrumentation)must participate in a Drug and Alcohol Testing program.* All apprenticeable journey level workers must annually complete 20 fours of training in skills, construction technique, and safety for their occupation administered by a bona fide apprenticeship program or by a 4 year or 2 year public college. Boma Fide Apprenticeship Program-- "One that has been approved by the CAC and that has graduated apprentices in each of the most recent five years.S9 Exceptions: 1. If Trained Workers not available after 2 days, other workers may be hired. 2. Contractors performing immediately necessary work after an emergency. *These requirements are effective upon passage of the ordinance. its /lam - = u E r' r tGI�✓� t. fienv;^:3 L Jlrrv\�Ct;• FCz ley^} ^ "v2tC �-J 1 ��FY�.S} ��ti iL �.11i�Q,✓' ��t.. Y•'Ci.� ' r � v~� �I.c1✓.�5 � r/fin �' /V �;,✓i�f'/� ��L.C�(J'�L�j��SM ���C.�.-Cart,.t�fp JY'1 �p�t2/1'i�_ C cill t 4"xi", RMonnu: N PERMANENT PROVISION—Journey Level Work r CLERK BCOContractors shall only hire journey level workers in an apprenticeable occup Have successfully completed all of the Have obtained a certificate of equivalent tests required to graduate from an training by completing a test consisting of a apprenticeship program for that written exam and manual skill occupation approved by the CAC demonstration Test is Test has been approved administered by a by the CAC and bona fide or administered by an apprenticeship accredited four or two program year public college All contractor employees (in the skill areas of electrical, metals, rotating equipment and instrumentation)must complete the BATC Safety Orientation Program.* All contractor employees (in the skill areas of electrical,metals, rotating equipment and instrumentation)that work independently and/or who are lead workers must pass an Oil Refinery Safety Skills Test Program administered by BATC.* All contractor employees (in the skill areas of electrical, metals, rotating equipment and instrumentation)must participate in a Drug and Alcohol Testing program.* All apprenticeable journey level workers must annually complete 20 hours of training in skills, construction technique, and safety for their occupation administered by a bona fide apprenticeship program or by a 4 year or 2 year public college. Bona Fide Apprenticeship Program o- "One that has been approved by the CAC and that has graduated apprentices in each of the most recent five years." .Exceptions: 1. If Trained Workers not available after 2 days, other workers may be hired. 2. Contractors performing immediately necessary work after an emergency. *These requirements are effective upon passage of the ordinance. 4, L V V I J 4V r u1IV1 nnivl Ir11+t+uIIII L11 vri B I NGHAM McCUTCH E N 11 1 INS Ipmemi"Plopsm 11'401 tfi I bm 3 Facsimile DATE October 28, 2002 OUR FILE NUMBED: 01947-059 NAME FAX PHONE TO Mike Henn (925) 335-1299 (925) 335-1290 Contra Costa County Silvano B. Marchesi (925) 646-1078 (925) 335-1800 Contra Costa County FROM Sanford M. Skaggs (925) 975-5390 (925) 975-5310 s.skaggs@bingharn.com PACES(INCLUDING THIS OVER PAGE): 15 Bin,5hcrn McCulchan LL? RE Suite 210 5:33 North California Blvd. Message: Ptd Bax V Walnui Creak, CA 94594.1270 025 437.6000 425,475.5390 Fax L�,ngha n corn 8000n t{ar#ard Iondon Loa Angeles Nov York Sari Francisco Silicon Valley Singapore Y°ainu3 Creak Washinghan For transmission problems,please call(925) 975-5386 Caution .-Catifldential The information in tilts fizz is confideniial and may also he privileged attorney,-client informarion and attorney workproduct. It is inrended nniy Jor the rectpient(s) narxed itbove. Ifyou aren't a named recipieni or his/her authorized representative, any reading, use, copying or dbtioloxvrc of Ibis,fax is striedy prohibited. Jfyozz aren't a named recipient,please call the above number(collect)now and return this fax Io ax h1i mad at the above address, 7`hank you, UL ! 26, 11U1 3: 2?m 61NtMAM IVIUUU1UhtN IVU, J4�d t'= 34l 17 9-16-202 3:16PM FROM JAY F I NKELMAN PHD AIS 409 9193 P. +� I E i the Interest of safety, that does not have an actual demonstrable relationship to a defensible measure of safety, ' The implication Is that unless there is a scientifically established relationship ' b t een completion of a CAC approved training process and increased safety or r i Viced accidents—there is no justification to impose such a requirement. In fact;such an artificial restriction is far more likely to be counterproductive to a legitimate safety objective. 'I i Ft duction of Qualified Workforce Throe h A ten'ticeshi r ms Not1surprisingI •, lthe net that are unrelated to the ability Imposing lity tod perform aobe qualified force ra job assignment will only serve to unnecessarily reduce the available labor force. Whenever unnecessary requirements or thresholds are introduced in order to (artificially) restrict access to employment opportunities—the results are never good. There is, of course, a legitimate use for certification and performance requirements for certain jobs—including certain refinery workers. However, this rationale should not be used to prejudicially restrict access to cartificabon prorams, To do so would violate fundamental fairness in the workplace—as well asglenerally accepted human resource management practices. i Adverse Imeact thin electionR�atios Te�chnicaily, anything that is done to limit the population of available, similarly i qualified workers, Into a training or assessment program, serves to adversely I increase the selection ratio. This means that if fewer workers are permitted to enter the selection `funnel" —a higher percentage of those workers will have to be hired or assigned to most whatever job requirements they are being recruited ; to fulfill. I The math Is irrefutable. If an employer is forced to hire(or select) more of a given population of workers with specific skill requirements — it will inevitably be forced to dig deeper into the pool of applicants or prospects_ This typically entails a de radation of the•average skill level of the final workforce that is selected.And th'+r,e is no credible gain to be derived from this restriction. In fact, only political agendas,—not safety agendas—are served by limiting access to qualified and effective training programs. No one has a monopoly on who may provide such essential programs.There is certainly no evidence that c6ritractors utilizing non-CAC approved training programs have less capability or i centive or experience in deyeloping and implementing these programs than c6r1tractors utilizing CAC-approved programs. Any program or process that restricts access of potentially quatif ed workers will be detrimental to the qualification process and Is likely to impede overall safety at such a facility. vt a, LU, LUUL J, LLtt9I u1IVUnn:r% IrwVv ; VIIl . V ,td _ Y 9-16-202 3 a 17PM FROM JAY F'INKEU4AN PHD A t 5 409 9193 Ladk of Empirical Research Justification f j Alp�elintinary review of the human factors and ergonomics literature also does ! not reveal any evidence or basis for assuming the superiority of a union used apprenticeship training program over an employer sponsored training program in assuring workplace safety, Thus, the proposed change is not defensible from an ;I empirical perspective. Sincerely, i JgyM. Finkelman, Ph.D., C,PS 'i } ,I i .3 ii PERMANENT PROVISION--Journey Level Workers Contractors shall only hire journey level workers in an apprenticeable occupation who: Have successfully completed all of the Have obtained a certificate of equivalent tests required to graduate from an training by completing a test consisting of a apprenticeship program for that written exam and manual skill occupation approved by the CAC demonstration Test is Test has been approved administered by a by the CAC and rena fide or administered by an nticeship accredited four or two program year public college All contractor employees(in the skill areas of electrical, metals,rotating equipment and instrumentation)must complete the BATC Safety Orientation Program.* All contractor employees (in the skill areas of electrical,metals, rotating equipment and instrumentation)that work independently and/or who are lead workers must pass an Oil Refinery Safety Shills Test Program administered by BATC.* All contractor employees (in the skill areas of electrical, metals, rotating equipment and instrumentation)must participate in a Drug and Alcohol Testing program.* All apprentieeable journey level workers must annually complete 20 hours of training in skills, construction technique, and safety for their occupation administered by a bona fide apprenticeship program or by a 4 year or 2 year public college. Bona Fide Apprenticeship Proeram--"One that has been approved by the CAC and that has graduated apprentices in each of the most recent five years." Exceptions: 1. If Trained Workers not available after 2 days, other workers may be hired. 2. Contractors performing immediately necessary work after an emergency. *These requirements are effective upon passage of the ordinance. EIVED N011 2002 PERMANENT PROVISION—Journey Level 'Work r CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. Contractors shall only hire journey level workers in an apprenticeable occupa ion Have successfully completed all of the Have obtained a certificate of equivalent tests required to graduate from an training by completing a test consisting of a apprenticeship program for that written exam and manual skill occupation approved by the CAC demonstration Test is Test has been approved administered by a by the CAC and bona fide or administered by an apprenticeship accredited four or two program year public college All contractor employees (in the skill areas of electrical,metals, rotating equipment and instrumentation)must complete the BATC Safety Orientation Program.* All contractor employees (in the skill areas of electrical,metals,rotating equipment and instrumentation)that work independently and/or who are lead workers must pass an Oil Refinery Safety Skills Test Program administered by BATC.* All contractor employees (in the skill areas of electrical, metals, rotating equipment and instrumentation)must participate in a Drug and Alcohol Testing program.* All apprenticeable journey level workers must annually complete 20 hours of training in skills, construction technique, and safety for their occupation administered by a bona fide apprenticeship program or by a 4 year or 2 year public college. Bona Fide Apprenticeship Proeram-- "One that has been approved by the CAC and that has graduated apprentices in each of the most recent five years." Exceptions: 1. If Trained Workers not available after 2 days, other workers may be hired. 2. Contractors performing immediately necessary work after an emergency. *These requirements are effective upon passage of the ordinance. Va LV• LV VL u LVIIV ui,uuiinivi irii. U `fiLIV vvV IVU. J4y6 r, II 17 B f NGHAM MtCU'TCH E N M IN q Facsimile CONSIDER WITH b Facsimile LATE October 28, 2002 OUR FILE NUMBER: 01947.059 NAME FAX PHONE TO Mike Henn (925) 335-1299 (925) 335-1290 Contra Costa County Silvano B. Marchesi (925) 646-1078 (925) 335-1800 Contra Costa County FROM Sanford M. Skaggs (925) 975-5390 (925) 975-5310 s.skaggs@bingham.com PAGES(INCLUDING THIS COVER PAGE): 15 6rnShem MrCulchen LLP RE Sulfa 210 1333 Ncrlh Celihrnls 61-d. Message: Pd Bex v Wolnur Croak, CA 94544.1270 035,437.8000 425.475.5340 boa 61n9ham corn liocfor; i#arr♦ard London foe Anaolae Nwr York Son Francisco RICan Volley Sinpopora Walnul Creek Wa:hin0hon For transmission problems,phase call(925) 975-5386 Caution—Conff'dential The information in this fax is confidential and may also he privileged attorney-client information and attorney workproduct. It is intended nnly for the recipieni(s) notued above. Ifyou aren't a named recipient or hislher authorized representative, any reacting, use, copying or e i,srinstrrc of lhix fax is strictly prohibited. if yrsu aren't a named reclplew,please call the above number(collect)now and return this fern to us hyl muil at the above address, Tank you, ut,i, 1t. 1vu1 tur!vi rsIIWAivi ivwt,uIU tIN wiu ;vu, ;4�b r, BINGHAM McCUTCHEN October 25, 2002 Direct; (925)975-5310 a.skaggs@bingham.com bingham.com 'SIA TELECOPIER Binghom McCulaken LLP Michael Henn Suitt 210 1333 North California Mrd. Special projects Planner 100 Box v Community Development Department Walnut Crock,CA Contra Costa County 9AS96-1270 County Administration Building 651 Pine Street,North Wing, 4th Floor 925.937.6000 Martinez, CA 94553 925.975.5390 fax RE: Amendments to the Industrial Safety Ordinance bingham,corn Proposed Negative Declaration (County File No. CP02-30) Basion Dear Mr, Henn. Hartford London We have been asked by Shell Oil Products U.S, to review and submit Los Angcics comments on its behalf on the proposed Negative Declaration being circulated New York York Son Fran in conjunction with the amendments to the Contra Costa County Industrial Silicon valley Safety Ordinance ("ISO"), Shell is concerned that the proposed amendments Singapore to the ISO will increase rather than decrease safety risks at refineries, and will Walnut Crock cause delays and disruption of refinery operations with consequent negative Washinglon impacts on the environment. In support of the proposed amendments to the ISO,the County relies on an incomplete and unsupported Negative Declaration,which erroneously concludes that there will be no significant impacts on the environment. For the reasons set forth below, the Negative Declaration does not comply with the basic requirements of the California Environmental Quality Act, Public Resources Code sections 21000 et seq., and the County must prepare an environmental impact report if it elects to proceed with the proposed ISO amendments. A. Negative Declaration Standard. CEQA establishes a strong presumption in favor of preparation of an EIR. If the project at issue may cause a significant impact on the environment, then the lead agency must prepare an EIR. Pub. Res. Code §§ 21080(d) & UU !. 1O, 1UU1 $ 1UrIVI L`IINui lVl IVIi,GUlttiL,il Wl IVU, j4`i r. j/ ':"J Michael Henn October 28, 2002 Page 2 21151(a); CEQA Guidelines, 14 Cal. Cade Regs. § 15064(a)(1), (f)(1). A Negative Declaration is therefore appropriate only where there is no substantial evidence in light of the whole record that the project may cause a significant effect on the environment. Pub. Res. Code § 21090(c)(1); CEQA Guidelines, 14 Cal. Code kegs. § 15070(a). . CEQA thereby establishes a"low threshold" for requiring the preparation of an EIR. Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296, 310 Bingham McCot.kom LLP (1988) (quoting No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 84 (1974)), r iru,11un,coin Under the well-established"fair argument" standard, an EIR is required whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the environment. No Oil, 13 Cal. 3d at 75;Friends of B Street v. City of Hayward, 106 Cal. App. 3d 988, 1000-03 (1980). If any aspect of the project may result in a significant environmental impact, an EIR must be prepared even if the overall effect of the project is beneficial. CEQA Guidelines, 14 Cal. Code Regs. § 15063(b)(1). Furthermore, if substantial evidence supports a fair argument that a project may have a significant environmental effect, the lead agency must prepare an EIR even if it is also presented with other substantial evidence indicating that the project will have no significant effect. CEQA Guidelines, 14 Cal. Code Regs. § 15064(f)(1). The fair argument standard thus prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. Stated another way, "(i)fthere [is] substantial evidence that the project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration,because it could be 'fairly argued' that the project might have a significant environmental impact." Friends ofB Street, 106 Cal. App. 3d at 1002; see also 1Vo Oil, 13 Cal. 3d at 85 (EIR is necessary when there is conflicting evidence as to whether the project may have significant impacts). In evaluating whether substantial evidence supports a"fair argument" that a project may have a significant effect on the environment, the lead agency must examine the entire administrative record. Pub. Res, Code §§ 21080(c)-(d), 210$2.2. In this case, the record as a whole contains substantial evidence supporting a fair argument that the County's proposed ISO amendments may have significant environmental impacts. As a result,the County's decision not to prepare an EIR violates CEQA. CEQA requires the County to prepare an EIR u� Zd. 1uu1 2Urivi 61NIUMAIVI � L�UlOtN wU _ Nu. J4�d r 4I i) Michael Henn October 28, 2002 Page 3 to analyze the potential environmental effects of the proposed ISO amendments and to evaluate project alternatives and mitigation measures. B. Analysis The Negative Declaration circulated for the ISO amendments does not satisfy the requirements of CEQA. The proposed amendments to the ISO would restrict contractors' ability to hire qualified, experienced workers, and thus Birighom McCuichen l.P increase safety risks. The restrictions on the labor pool may also cause tyingham.com significant delays with refinery maintenance and turnarounds, further compounding the environmental impacts. 'There are also potential negative environmental impacts from the proposed ordinance's reliance on programs approved by the California Apprenticeship Council ("CAC") in light of the U.S. Department of Labor's pending derecognition proceedings. None of these potential environmental impacts have been evaluated or considered. 1, The Proposed Ordinance Decreases Safety The conclusions in the Negative Declaration are based on the entirely unsupported assumption that the proposed changes would increase safety at oil refineries and other industrial facilities. However, as both the County Public and Environmental health Advisory Board (PEHAB) and the Planning and Policy Development Committee of the County Hazardous Materials Commission (HMC) have found, there is no substantial evidence that these amendments would improve safety. On the contrary,the evidence shows that the proposed revisions are far more likely to have the opposite effect. The amended ISO would severely restrict the labor pool from which contractors may hire skilled workers for refinery maintenance and turnarounds, and may therefore force contractors to hire less experienced and less qualified workers. The Initial Study attached to the Negative Declaration repeatedly cites improved worker safety as the basis for its conclusions that no significant impacts are reasonably probable in any of the areas studied. For example, it asserts that"[t]he changes proposed would cause the use of better-trained workers, which would reasonably have the effect of reduced incidents involving hazards and release of hazardous materials." (Neg.Decl., p.10). This assumption is directly contrary to the findings of the PEHAB and of the HMC's Planning and Policy Development Committee made after detailed review, analysis and consideration of available evidence. At the request of the Board of Supervisors, both PSHAB and the IAC undertook a comprehensive review of the proposed ISO amendments in order to matte recommendations to the Board regarding their adoption. The HMC's USI, 1G, 1UUL J, LIfIV'. blNuhAM RILE UItHtIN Wt IVU, 349b F1� Michael Henn October 28, 2002 Page 4 Planning and Policy Development Committee and PEHAB's Environmental Subcommittee were charged with developing recommendations for their respective bodies. These committees met monthly from January to June, 2002, to review and discuss available evidence and develop recommendations. The full HMC and PEHAB met jointly to hear testimony from labor and industry groups and the public regarding the proposed changes. Based on this intensive review, both the HMC's Planning and Policy 9incgkcri McCulchan ILP Development Committee and PEHAB's Environmental Subcommittee Onahum corn concluded that there was no substantial evidence that the proposed changes would improve worker safety. In voting against the proposed amendment, the Planning and Policy Development Committee cited the lack of any evidence that contract workers trained in programs approved by the CAC had better safety records than those trained elsewhere. The Environmental Subcommittee reached the same conclusion. Based on these findings, PEHAB has recommended that the Board reject the contractor training requirements.I These conclusions are entirely consistent both with the evidence and with the operative provisions of the ordinance. The amended ordinance would require contractors to hire"trained" workers from Contra Costa, Alameda, and Solano Counties if available, before hiring from outside these three counties. A "trained worker" is defined for the first three years as a journey level worker who is a graduate of an apprenticeship program approved by the CAG After three years, the definition expands to include apprentices of an apprenticeship program approved by the CAC. To qualify as a"trained worker" under the amended ordinance,journeymen must complete 20 hours of training every year at an apprenticeship program approved by the CAC. Journeymen trained at apprenticeship programs that are not approved by the CAC must still meet this requirement and they must also pass a test that is either administered by a CAC-approved apprenticeship program or approved by the CAC and administered by an accredited public college. If there is an inadequate supply of"trained" workers in Contra Costa, Alameda, and Solano Counties, contractors may expand their hiring pool. However, contractors are still restricted to journeymen and apprentices who } The HMC was unable to garner sufficient votes for a specific recommendation and hence made no recommendation to the Board. UI, I. Zt, 1UU1 b, 21IIyl b1NUHRIVI NILt,UI�"tN1 WL NU, J4�b a. b/i� Michael Henn October 28, 2002 Page 5 graduated from or are enrolled in CAC-approved apprenticeship programs.2 Journeymen must also complete 20 hours of training through a CAC-approved apprenticeship program every year. The proposed ordinance restricts contractors from hiring workers who live outside of Contra Costa, Alameda, and Solano Counties and who are not graduates or enrollees of an apprenticeship program approved by the CAC. It thus precludes contractors from hiring skilled, experienced oil refinery s;nskom,Mccutciioei UP workers who were trained on the job or through other apprenticeship lalirgham conn programs. As a result, the amendment will likely force contractors to hire workers who have little or no training or experience in refinery work, even though they meet the ordinance's definition of a"trained worker." By limiting the supply of well-qualified workers and compelling contractors to hire inexperienced workers,the ordinance has a significant potential to cause increased safety risks. In tum, these heightened safety risks significantly increase the potential for a chemical accident or release. The Negative Declaration wholly fails to consider these factors in concluding that there is no potential for significant environmental impacts. None of the materials cited as "Sources" in the Initial Study support its assertion that worker safety would improve as a result of the ISO amendments. Virivally all of the cited materials that address the issue of worker safety analyze the relative safety records of direct-hire:versus contract workers. None address the relative merits of CAC-approved apprenticeship programs versus other types of training and experience in improving worker safety, and none contain any evidence indicating that restricting the qualified labor pool in the manner proposed will improve safety. On the contrary, they demonstrate that workers who have more on-the-job experience,training and familiarity 2 The narrow exception relating to testing-in described above applies here as well. However, we question whether this provision would really enable non-CAC approved apprenticeship program graduates to test in. CAC-approved apprenticeship programs generally do not, and have no incentive to, otTer a test to such journeymen because doing so would only increase competition with their own journeymen. As for testing-in through a test offered at an accredited public school,we are unaware of a single two-year or four- year college that currently provides such an option and the accord is devoid of any evidence that such tests exist. Moreover,journeymen who passed a.test administered by a public school would still need to find a CAC-approved apprenticeship program willing to provide them with 20 hours of training a year. u� i. 1 1UU1 ; 1IYiv; bINUHHIVI I'dKUUILHtN Wl; NU, .i4yti Michael Henn October 28, 2002 Page 6 with petrochemical plants are likely to be substantially safer than workers who have little or no such familiarity, training or experience. As noted in the Industrial Relations article Job Safety and Contract Workers in the Petrochemical Industry [Rebitzer 1995] --cited as "Source No. 9 in the Initial Study"—refinery operations involve complex and interrelated processes, many of which are implicated during refinery turnarounds. Various components in a petrochemical plant can interact with each other in ways that Bingham McCurchan Ll� are both unplanned and difficult to comprehend. (Id. p. 46) Studies cited in bingharn.ccm the same article show that because of the"complex and tightly coupled„ refinery production processes, serious accidents are oven the result of an unexpected series of events triggered by small and otherwise innocuous accidents or events. (Id. p. 47) 'Workers with less experience with the overall facility may be less able to predict the safety consequences of their actions, regardless of how much training they have received in their particular craft. Stated differently, such workers may lack the facility-specific knowledge and experience required for optimum safety. (Id.) Although the primary focus of the article is on contractors with less experience in refinery operations, the same logic applies to the workers employed by such contractors. These considerations are particularly important in the context of refinery turnarounds, for which relatively large numbers of specialized contract workers are normally required. Such turnarounds typically require shutting down highly productive and expensive capital equipment and hence must be completed quickly and efficiently. (Rebitzer at p. 42.) The need for trained workers, experienced and familiar with refinery operations is particularly acute in this context, and the restrictive provisions of the ISO amendments will preclude refineries from using the workers best suited to the task. In addition to the evidence cited in the "Sources," numerous letters, declarations, articles and other materials already in the record—as well as the conclusions of PEHAB and the Hazardous Materials Commission's Planning and Policy Development Committee—demonstrate that the proposed amendments will not increase safety and are more likely to have the opposite effect. The conclusions to be drawn from this evidence were aptly summarized in the letter of Jay Finkelman, Ph.D., C.P.E., submitted to the Board on September 17'h (copy attached). Dr. Finkelman, an industrial and forensic psychologist, concluded, after careful review of the proposed amendments, that: (1) There is no credible rationale or empirical research that supports the utility of imposing a CAC-approval or training requirement on workers from a safety perspective; UU1. 28, 2002 3: 21FM BIN6HAM MUCUICHEN WC INS. 3498 F. 8/15 Michael Henn October 28, 2002 Page 1 - (2) There is no basis for concluding that CAC-approved programs are superior to other training or experience requirements imposed by refinery contractors—and there is some basis to conclude that they may be inferior, and (3) To impose standards that artificially restrict who can provide the training and assessment to refinery workers "may prove counter- productive to the safety agenda by reducing the opportunities that Bingham McCulchen LL(' workers have to obtain necessary training— and thus reducing the L�ingham.cam population of properly trained and certified workers." 2. The Proposed Ordinance May Cause Significant delays and Consequent Environmental Impacts Restricting the labor pool may have additional environmental impacts caused by delays in completing refinery turnarounds and scheduled and unscheduled maintenance. The unavailability of properly trained, experienced workers could delay or disrupt performance of required refinery turnarounds. Increasing the number of inexperienced workers also increases the chances that problems or unanticipated events may occur during tumarounds that such workers are not equipped to handle, thus necessitating shutdowns while the incidents are assessed. Furthermore, during a turnaround, it is common to identify additional maintenance work that needs to be undertaken that is not within the initial scope of work. Such maintenance work may require specialty labor that could not immediately be secured consistent with the terms of the proposed ordinance,resulting in delays in resumption of refinery operations. Also, such unavailability in the event of any unanticipated outage or unscheduled maintenance-- whether or not in the context of a turnaround-- could significantly extend the shutdown period. These delays, in turn, would disrupt the supply of gasoline and diesel fuels to Northern California. The State of California requires unique fuel specifications for both gasoline and diesel in order to meet air quality standards. As a result, California relies upon only 13 in-state refineries to produce most of its gasoline and diesel. Contra Costa County's four refineries supply approximately one-third of the gasoline and one-half of the diesel for the entire State of California. Delays in securing qualified labor could significantly hold up the return to service of these refineries after an unscheduled outage or other unanticipated event, causing statewide shortages of gasoline and diesel and higher fuel prices. Such shortages could, in tum, necessitate use of unrefornnulated fuels--resulting in adverse air quality impacts -- or importation of gasoline and diesel via truck from other states, with attendant risks of accident. U� I. 2d. 2UU1 x, 21 bINUHIAM MUM ILMEN YdU IVU. 34 a N. UI1� Michael Henn October 28, 2002 Page S Delays in maintenance and extended shutdowns of refinery units could also result one or more of the following significant environmental impacts: (1) Delays in maintenance work could cause the refinery to run out of storage capacity for"residuals" (the heavier parts of the barrel of crude oil), making it necessary to transport the excess away from the plant, significantly increasing transportation risks and environmental hazards. Bingham Mcculchen LLP (2) Delay could preclude the refinery from restarting its process units, including those that are also Hazardous Waste Incinerators. The refinery would then have to transport the hazardous waste off-site for disposal, creating additional transportation and disposal hazards. (3) Delay that precluded the refinery from restarting units that produce low BTU gas units could cause an increase in emissions of oxides of nitrogen into the atmosphere. (4) If the refinery could not restart its acid regeneration facility on time, it would have to transport spent acids as far away as Southern California, again increasing transportation risks. (5) Delays in replacing catalysts in units that perform environmental functions (such as the sulfur recovery unit("SRU"])would require a shut down of all units connected to the SRU. The refinery operator would need to obtain a variance from the Hay Area Air Quality Management District to continue operating the unit until the maintenance work could be completed. During this period, there would be significantly increased emissions (up to many tons) of sulfur dioxide per day. (G) Unavailability of qualified labor could cause delays in implementation of projects undertaken to reduce potential safety risks or environmental impacts. Delay in implementing these projects would, in turn,delay the environmental protection these projects offer. These projects include the installation of an ammonia tank to reduce emissions of oxides of nitrogen (NOx); the installation of a new catalyst bed to reduce NOx, and the installation of equipment to reduce the risk of failure of other equipment as identified in an incident investigation following a fire or an explosion. U1 1, zb. lUUl J i1I'M b 1 NGtiHIVI IVIt 1U I l NtiV WU IVU, j$yd r, !U/ I) Michael Henn October 28, 2002 Page 9 3s The Proposed Ordinance's Reliance on the CAC Causes Further Concern By relying so heavily on CAC-approved programs as the benchmark for selection of qualified workers, the proposed ordinance raises additional concerns as well. The Department of Labor's Office of Apprenticeship, Training, Employer and Labor Services ("OATELS") has initiated derecognition proceedings against the CAC. OATELS initiated these Bingham McCutcher Lip proceedings because it believes the CAC unlawfully limits its approval of a;r9h$Mx0M apprenticeship programs to one for every craft or trade per geographic area, unless there is a demonstrated need for an additional program. OATELS's finding that the CAC unlawfully restricts the number of approved apprenticeship programs confirms that the proposed ordinance,by confining the labor pool to CAC-approved apprenticeship programs, unduly limits the available labor pool for covered work on oil refineries. The derecognition proceeding instituted by the federal government injects a further element of confusion and uncertainty into the proposed ISO amendments. For example,what will happen to the ISO if the CAC is derecognized? Will the ordinance's provisions still require hiring of workers of}'orm.erly CAC-certified programs? Will further amendments to the ordinance be needed to clarify this, and how quickly are such amendments likely to occur? In the interim, will refineries and contractors be at risk of violation of the ordinance if they guess wrong about the impact of the derecognition? The lingering confusion and uncertainty surrounding the potential derecognition of the CAC and probable delays compound the safety and environmental concerns highlighted above. C. Conclusion There is substantial evidence supporting a fair argument that the proposed changes to the ISO may have a significant effect on the environment. Accordingly, the County may not rely on a negative declaration. Rather, to comply with CEQA's requirements, it must prepare an EIR to evaluate the potential environmental impacts of this project, The failure to prepare an EIR would constitute a prejudicial abuse of discretion under the statute. U� 1b luul j; 11rwi b1NGHAM IKGuICHLN we NU, 3496 11/11 Michael Henn October 28,2002 Page 10 Thank you for your consideration of these comments, which, given the limited time available to us for review, are necessarily preliminary. Our review and investigation are ongoing and we plan to provide additional comments prior to or at the Board hearing on the proposed amendments. Sincerely yours, En9 hum McCarchen LLP anfo M.IS -ailgas bin{�hum.cam Null 9-1 S-202 3: 1 SPM FROM JAY F I N6ELMAN PHO 415 429 9193 Jay M. Finkelman,Ph.D, C.P.E. Industrial I Forensic Psy6alagisc 22001 Pacifie'Avenue, Penthouse 12 D San Francisco, California 94115-14.83 Telephones(416)405.9191 Facsimile. (416)409.9199 ' jt'takeltx�anft�xni�pring,ccam • Ddptosnas�404 A Foteantis Prycltol ticwnrd ra t f .�st4�tetin$r4of Ptor¢adm4a FuChWO& succ o ►� :l Amritn Ea to of New York ; i September 16, 2002 C r Board of Supervisors C64tra Costa County 6911 Pine Street Martinez, California 94553 i RE' INDUSTRIAL SAFETY ORDINANCE Proposed Amendment—Contractor Safety i Dilor Board Members: I have reviewed the County of Contra Costa's current Industrial Safety Ordinance (Ord. No. 98-48),the proposed amendment regarding `Contractor Safety"which would add a new Section 450.016(C) and relevant documents previously su0mitted Into the administrative record. du lifleations I am an lndustrial and Forensic Psychologist as well as a Certified Professional � Ergonomist. I hold a Ph.D. in Industrial I Organizational Psychology from New York University and an M.6.A. In Industrial Psychology from the Bernard M. Baruch School of Business of The City College of The City University of New York. Both my M.B.A. and Ph.D. dissertations entailed ergonomic and human factors engineering research. I , s a tenured full professor of Industrial Psychology at The City University of New fork as well as Dean of Students at Baruch College. I also served on the j Doctoral Faculty in Business, at the Graduate Cerner of the City University of New York. I`am a member of the Industrial Psychology and Engineering Psychology ` Dl lsions of the American Psychological Association, a member of the Human i USI, 1b. 1UU1 3; 11f'm biNUHRM NI UUIUHtN WU NUI j41d 9-16-202 .3=16PM FROM JAY FI NKEELMAN PHO 416 409 9193 P.3 Factors and Ergonomics Society and of the American Academy of Forensic Psychology. I was awarded a Diplomate from the American Board of Professional Psychology j arjdffrorn the American Board of Forensic Psychology where t am also a fellow. I arb � Certified Personnel Consultant from the National Association of Personnel Consultants and a Certified Employment Specialist from the California Association of Personnel Consultants. I am a licensed psychologist in the State of California and in the State of New York and listed in the National Regr`sterofHealth Service Providers in Psychology. I am a member of Psi Chi, Delta Sigma Rho-- Tau Kappa Alpha and Beta Gamma Sigma, and received the Excellence In Teaching Award from the(City University of New York. ;l No Justification for Limiting Approval Process to CAG There is no credible rationale that t can imagine, nor empirical research that I have reviewed, that supports the utility of imposing a California Apprenticeship C60ncil ('CAC') -- or any proprietary and thus limiting w approval or training re#rement on industrial contractors, from a safety and ergonomic perspective. , There are typically multiple approaches and methodologies that can be utilized in the design of a credible and effective industrial safety program. There Is no basis to conclude that CAC-approved programs are superior to those m�andated by current guidelines administered through contractors utilizing non- CAC approved training programs—and there Is some basis to conclude that they may be inferior. It Is my understanding that according to Cal-OSHA data, trade union workers in the refinery building trades have nearly twice the job injuries as l `Weir non-union colleagues (June 10, 2002 letter from George B. Smith, ARbADIS, to Contra Costa County Hazardous Materiais Commission). While it is reasonable to impose minimum standards on the content of any safety program—and on the performance requirements of those successfully completing such a program—it Is not reasonable to artificially restrict who can ptoiride such training and assessment. To do so may prove counterproductive to tl�elsafety agenda by reducing the opportunities that workers have to obtain ` necessary training —and thus reducing the population of property trained and certified workers. i bleed for Statistically Significant Justification of Restricted Pira r-aims From a scientific safety perspective, it is Indefensible to Impose any requirement on a training or evaluation program that does not manifest a statistically sing ficant correlation with a reliable and valid criterion measure of safety. In othZ words, there is no empirical justification to require that anything be done, in USI, 16o i 0 U 2 3: 22em 61NUHAIVI IYUUUl�HtN WG .��, j4�t r, 14� 1, 9-le-202 3:16PM FROM JAY F INKELMAN PHD A t 5 409 9193 P. a ' I the interest of safety, that does not have an actual demonstrable relationship to a defensible measure of safety. 4• The implication is than unless there is a scientifically established relationship be,tvpeen completion of a CAC approved training process and increased safety or re idced accidents-there Is no justifica#lon to impose such a requirement. in facts such an artificial restriction Is far more likely to be counterproduct`Me to a legitimate safety objective. Reduction of Qualified Workforce Throu h renticeshi P o r ms Noturpristngly, the net effect of Imposing workforce certification requirements } that are unrelated to the ability to perform and,be qualified for a job assignment will only serve to unnecessarily reduce the available labor force. Whenever unnecessary requirements or thresholds are Introduced in order to (artificially) restrict access to employment opportunities-the results are never good, There is, of course, a legitimate use for certification and performance requirements for certain Jobs-including certain refinery workers. However, this rationale should not be used to prejudicially restrict access to certification pr�a rams. To do so would violate fundamental fairness in the workplace W-as well as enerally accepted human resource management practices. Adverse Impact Cin Selection Ratios ; Technically, anything that is dime to limit the population of available. similarly qualified workers, Into a training or assessment program, serves to adversely I intrPase the selection ratio. This means that if fewer workers are permitted to enter the selection 'funnel--a higher percentage of those workers will have to be hired or assigned to most whatever job requirements they are being recruited to fulfill. : The math Is irrefutable. If an employer is forced to hire (or select) more of a given population of workers with specific skill requirements- it will inevitably be forced ; to dig deeper into the pool of applicants or prospects.This typically entails a deradation of the�average skill level of the final workforce that Is selected.And tNeTe is no credible gain to be derived from this restriction. In fact, only political agendas,r not safety agendas-are served by limiting access to qualified and effective training programs. No one has a monopoly on who may provide such essential programs.There Is certainly no evidence that c6ritractors utilizing non-CAC approved training programs have less capability or incentive or experience in dayeloping and implementing these programs than c6r1tractors utilizing CAC-approved programs. Any program or process that E restricts access of potentially qualified workers will be detrimental to the qualification process and is likely to impede overall safety at such a facility. VVI. ZV- ZVVI Lt1IY! UIIt V 11 rliYl MV Vi vii 6i ttv .. .e .. ,, .... 9-t 6--202 3 m 17PM FROM JAY FINKE,.MAN PFD Q15 4®9 9193 i Ladk of Empirical Research Justification Alpyetiminary review of the human factors and ergonomics literature also does not reveal any evidence or basis for assuming the superiority of a union based apprenticeship training program over an employer sponsored training program in assuring workplace safety, Thus, the proposed change is not defensible from an E empirical perspective. i Sincerely, I ;l i` 4 � E Jqy:M. Finketman, Ph.D., C:P.E, i i 4 t t iI . i i { f I .t PERMANENT PROVISION—Journey Level Workers Contractors shall only hire journey level workers in an apprenticeable occupation who: Have successfully completed all of the Have obtained a certificate of equivalent tests required to graduate from an training by completing a test consisting of a apprenticeship program for that written exam and manual skill occupation approved by the CAC demonstration -t. tl rpt Test is Test has been approved administered by a or by the CAC and na tide administered by an renticeship accredited four or two program year public college All contractor employees(in the skill areas of electrical, metals,rotating equipment and instrumentation)must complete the BATC Safety Orientation Program.* All contractor employees (in the skill areas of electrical,metals, rotating equipment and instrumentation)that work independently and/or who are lead workers must pass an Oil Refinery Safety Skills Test Program administered by BATC.* All contractor employees (in the skill areas of electrical, metals, rotating equipment and instrumentation)must participate in a Drug and Alcohol Testing program.* All apprenticeable journey level workers must annually complete 20 hours of training in skills, construction technique, and safety for their occupation administered by a bona fide apprenticeship program or by a 4 year or 2 year public college. Bona FIde Ayurenticeship Program--"One that has been approved by the CAC and that has graduated apprentices in each of the most recent five years." Exceptions: 1. If Trained Workers not available after 2 days, other workers may be hired. 2. Contractors performing immediately necessary work after an emergency. *These requirements are effective upon passage of the ordinance. J CALIFORNIA CONTRACTORS ALLIANCE P.O. 6ox 601, Benicia, CA 94510 Voice Mail (707)746-5594 www.ccaconstructs.org ASPEN Two INC. October 30, 2002 RECEIVED r Y OCT 3 1 2002 BENICIA FABRICATION&MACHINE,INC. Hon. John Gioia Chairman, Board of Supervisors � RK �°NT°° 7A j R T Contra Costa County COREY DELTA CONSTRUCTORS 11780 San Pablo Ave. Suite D V EI Cerrito, CA 94530 JEFFCO PAINTING$c COATING,INC. Re: Revisions to the Industrial Safety Ordinance - November 5, 2002 T PETROCHEM INSULATION, INC. Dear Chairman Gioia: On Friday, October 25, the California Contractors Alliance (CCA) staff PLANT MAINTENANCE,INC. mailed out a letter with proposed revisions to the Industrial Safety Ordinance (ISO). Unfortunately, there were some additional revisions SONNIKSON AND STORDAHL that didn't make it into the copy you received and we would like to CONSTRUCTION, INC. provide you with an updated version (see attached). V In conjunction with the updated version, I would also like to provide you STARCON INTERNATIONAL,INC. with a summary of the key points CCA is proposing be incorporated V into the revised ISO as follows: TIMEC COMPANY,INC. 1. Remove "local hiring hall' requirements in the two- day/out of town THE TIMEC GROUP OF COMPANIES rule as this implies that everyone would have to utilize union hiring V halls to staff their projects. CCA would propose replacing that wording UCI CONSTRUCTION,INC. with " contractor will exhaust its local resources" V 2. CCA concurs with the current strategy of developing a two-track UNDERGROUND CONSTRUCTION standard with graduation from apprenticeship program as one track COMPANY,INC. and a test out standard as the other track for establishing journeyman status. 3. CCA agrees that we would have involvement in writing a journey level competency-testing standard, possibly requiring California Apprenticeship Council (CAC) input into the tests and that the three- year compliance window would not begin to run until the tests are approved, in place, and available to be administered. Given its current involvement in industry testing programs, BATC could serve as the test developer (with or without CAC involvement) and also administer the � t3r - t t4a� � � i tests, which would certainly shorten the overall timeframe from design to implementation. 4. If at all possible, try to allow other entities to be certified as approved to administer the competency tests and/or any required training (such as BATC or facilities certified by NCCER). This will encourage more crafts persons to get people into these programs so it does not slow down the work that is need to maintain safety at the refineries or discourage people from working in Contra Costa County. 5. The current language still requires anyone not passing the certification test to enroll in a CAC-approved apprenticeship program. Our understanding from what Supervisor Gioia stated at the 10/8 hearing, was that the final language would leave training standards out all together for 'Non-Journey Level Craftspersons' and would focus instead on testing to determine competency to work at a journey level status in the refineries. A preferable alternative to any training standard is what CIS had in an earlier version of its language, that was the establishment of a ratio of trainees to journey level workers (e.g., four to one) which might become more aggressive as the training requirements had time to produce additional journeypersons. However, if there must be language that defines the requirements of a training program for non journey level craft, make sure it is broad and fair enough to get people into the classes and is industry specific. It should be noted that it is virtually impossible for local workers and wholly impossible for seasonal or out-of-town workers to attend any fulltime training program that is currently scheduled locally (e.g., as a CAC-approved apprenticeship program). CCA wants training standards that are flexible enough to use the NCCER curriculum in a part-time, non-apprenticeship program setting (consistent with what Supervisor Gioia indicated he would support on October 8). 6. Acknowledge the multi-craft craft worker by defining its existence in the ISO and by requiring that multi-craft workers pass a competency test in their 'primary' craft, which is defined as the craft that they work in the majority of the year. 7. Requiring out-of-town workers to attend 20 hours of training each year at a local college presents a big logistical problem. Alternatively, to achieve the goal and still preserve the labor pool, allow out-of-town workers to get training by broadening the definition of acceptable training to include relevant training from any source or potentially waive the requirement altogether for non-local craft workers. 8. This language should apply to all safety sensitive tasks and workers. 9. Care should be taken in using the term 'apprentice' and 'apprenticeship program' as these are terms that are specifically defined by CAC. Consider'trainees' and 'training programs' as alternatives. As stated previously, CCA is encouraged by the progress that has been made and is ready to voice its support for a revised ordinance provided its concerns are addressed. It is believed that the revisions suggested herein will help to ensure the adoption of a revised ordinance that withstands challenge, reflects the Board's desire for a comprehensive solution that improves safety for workers and the surrounding communities, and has set in motion a process that will ultimately apply to all persons who have a hand in ensuring the safe and incident free operation of these facilities. Thank you for the opportunity to clarify these revisions to the proposed ordinance. Should you have any questions or wish to meet, please contact me at 707.644-7455, ext 111. CCA and its member companies stand ready to assist the County in passing an ordinance that is fair, equitable and relates exclusively to industrial safety. Sincerely yours, Pat Leiser, President Copy To: Board Members, Contra Costa County Board of Supervisor Clerk of the Contra Costa County Board of Supervisors Dennis Barry, Contra Costa County Community Development Department Michael Kent, Contra Costa County Hazardous Materials Commission Randy Sawyer, Contra Costa County Health Services Department Board Members, California Contractors Alliance ORDINANCE NO. 2002- (CCA Revision 1 10/22/02) (OIL REFINERY WORKER.SIOLLS TRAINING AND TESTING" OIL REFINERY SAFETY TRAINING AND SKILLS TESTING"DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended, by adding subdivisions (p)through(u), defining specified terms, to read. (p) "Bay Area Training Corporation Safety Orientation Program" means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q) "Covered Worker" means an employee of an oil refinery or oil refinery contractor engaged in new construction, maintenance, repair, or turnaround work at an oil refinery involving energized, pressurized, or control systems in the covered craft skill areas of electrical, metals, rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code("NAICS") of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Refinery Contractor"means an independent contractor that provides labor and/or services to oil refineries for new construction, maintenance, repair, or turnaround work. (u) "Oil Refinery Safety Skills Test Program" means the oil refinery safety skills test program administered by the Bay Area Training Corporation on the effective date of this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Ords. 2002-____ § 1; 98-48 § 2.) (v) "Qualified Journey Level Worker""means an Oil Refinery or Oil Refinery Contractor worker in a covered craft occupation who has either graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in subsection(3)(C)below, (w) "Industrial Maintenance Mechanic"means an employee of an oil refinery or oil refinery contractor who routinely performs general maintenance and repair tasks involving several different construction craft disciplines. ORDINANCE NO. 2002- -1- October t,2002 SECTION 11 Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements, is amended as follows: A. By deleting subsection(11), Contractors, of subdivision(a), Risk Management Program Elements. B. By adding subdivision(g), Contractor Safety, to read: (g) Covered Worker Safety. (1)Application. This section applies to oil refinery employees or oil refinery contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to Oil Refinery or Oil Refinery Contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, or other supply services. (2) Stationary source responsibilities. (A) The stationary source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B) The stationary source shall inform the contractor of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (C) The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision(a) of this section. (D) The stationary source shall develop and implement safe work practices consistent with subsection(2) of subdivision(a) of this section, to control the entrance, presence, and exit of the contractor and contractor employees in covered process areas. (E) The stationary source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities) of this subdivision. (F) The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) Oil Refinery or Oil Refinery Contractor responsibilities. (A) Commencing three years after the approval and publication by the California Apprenticeship Council of all industry specific craft tests related to certificates of equivalent training, under subsection 3(C)below, each Oil Refinery or Oil Refinery Contractor performing work on a Covered Process to which this subdivision applies pursuant to subsection(1) of this subdivision shall employ(i) only Qualified Journey Level Workers in an covered craft occupation who either have graduated from an apprenticeship ORDINANCE NO. 2002- -2- dcwber 1,2002 program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(C)below, of this subdivision, (ii)employ only non journey level workers in an covered craft occupation in a ratio of no more than four(4) non journey-level workers per journey level worker., and (iii) employ only journey level workers in an covered craft occupation who have completed at least 20 hours of training in either craft skills, construction techniques, and/or safety for that occupation within the last 12 months. (B)Each flit Refinery or Oil Refinery Contractor is required to meet its need Qualified Journey Level Workers for any work on Covered Processes by first exhausting its pool of Qualified Journey Level Workers in each covered occupations to the extent that they are available in Contra Costa, Alameda, and Solaro Counties. If a contractor exhausts its pool of Qualified Journey Level Workers in Contra Costa, Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that journey level covered workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before Qualified Journey Level Workers. A contractor who hires workers other than Qualified Journey Level Workers shall comply with subsection(F)below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than Qualified Journey Level Workers. (i) (C) A journey level worker may obtain a certificate of equivalent training to demonstrate the he/she is a Qualified Journey Level Workers for a covered occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that occupation. For purposes of obtaining a certificate of equivalent training under this section, an Industrial Maintenance Mechanic may either complete a test specifically written for the multi-disciplinary position of Industrial Maintenance Mechanic or complete a test in the primary craft in which that person performs the majority of his/her work. The tests for all industry specific crafts shall be approved by the California Apprenticeship Council and administered by either(i) an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that occupation; (ii) an accredited public or private post- secondary education institution which has adequate facilities to for both the written and manual portion of the test; or, (iii) an independent, professional testing organization authorized to administer tests in the state of California which has adequate facilities to administer both the written and manual portions of the test. (D) The terms"apprentice" and"apprenticeable occupation" shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation" refers to an apprenticeable occupation. The term"journey level worker" shall have the same meaning as the term"journeyman" in the California Labor Code. A bona fide apprenticeship program is one that has been approved by ORDINANCE NO. 2002- -3- cotober 1,2002 the California Apprenticeship Council., All Qualified Journey Level Workers who work on Covered Processes must complete at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within each calendar year. (E) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contractor shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii)The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by subsection(2) of subdivision(a) of this section. (v)The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (F) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections(3)(A)through(D) of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. (4) Oil Refinery Responsibilities. (A) Safety and Skill Training and Testing. (i) An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refinery job to have passed the Oil Refinery Safety Skills Test Program. (B)Drug and Alcohol Program. Oil refinery contractors shall require their contractor- covered workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and"for cause testing," and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also consider the contractor safety record of the oil refinery contractor, including three most recent ORDINANCE NO. 2002- -4- Odoba 1.2002 years for each of the contractor's OSTIA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. (Ords. 2002 § 2, 2000-20 § 1, 98-48 § 2.) SECTION III, SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION TV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares its intent(1)that such provision be severable from the remainder of the ordinance, and (2)that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION Y. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] HAHAZMAI'qNDORD\fm&1 100102 drakwpd ORDINANCE NO. 2002- -5_ October 1,2002 CALIFORNIA CONTRACTORS ALLIANCE P.O. Box 801,Benicia,CA 94510 Voice Mail(707)7485594 www.ccaconstructs.org ASPEN Two,INC. October 25, 2002 R V aBOARD 002 BENICIA FABRICATION&MACHINE,INC. Hon. John Gioia CL �'Isns Chairman, Board of Supervisors coRAccsi:ac�. Contra Costa County COREY DELTA CONSTRucToR$ 11780 San Pablo Ave. Suite D EI Cerrito, CA 94530 .IEFFCD PAINTING&COATING,INC. Re: Revisions to the Industrial Safety Ordinance - November 5, V 2002 PETROCHEM INSULATION, INC. ,r. Dear Chairman Gioia: PLANT MAINTENANCE,INC. On behalf of the California Contractors Alliance (CCA) and its 11 T industrial contracting member companies, I would like to SONNIKSON AND STDRDAHL compliment you and the other members of the Contra Costa CONSTRUCTION,INC. County (County) Board of Supervisors (Board) on your willingness to listen to and incorporate CCA's issues into the proposed revisions to the Industrial Safety Ordinance (ISO). Moreover, since STARCON INTERNATIONAL,INC. the October 8, 2002 Board meeting, I have personally been 7 impressed with the quality of the dialogue resulting from that meeting and what I perceive in its aftermath to be a sincere desire TIMEDCOMPANY,OCINC.OMPANIES on the part of many of the affected parties, both public and private, THE TIMEc GROUP OF Cto meet with CCA and address its concerns as they relate to the V proposed changes to the ISO. I believe it is a testament to your UCI CONSTRUCTION,INC. leadership that this is now occurring. V CCA and its member companies believe, first and foremost, in UNDERGROUND CONSTRUCTION safety. Our livelihood depends on delivering quality contracting COMPANY,INC. services without incident or injury and the exemplary records of our membership clearly speak to this priority. Along that line, our former objections pertained to what we believed to be exclusionary economic provisions unrelated to safety. Again, we wish to compliment your leadership and accept your pledge that the end product will be a non-discriminatory ordinance with safety as its sole focus, along with the Board's stated intent to expand the ordinance to include ALL workers in sensitive positions, be they contractor or refinery employees, union or merit shop workers. ce, NO-in r4 j4e a--1 4i vc To that end, CCA is prepared to support the proposed revisions to the ISO if the modifications recommended by our organization and authorized by the Board for inclusion are in fact incorporated into the final, revised version that is scheduled for consideration on Tuesday, November 5, 2002. Provided below are those items that we believe were authorized by the Board for inclusion. This will allow you and the other members of the Board time to review our modifications in advance of the meeting, subject to your confirmation that "what we heard" is indeed "what you said," and providing sufficient opportunity, should it be necessary, to discuss and resolve any outstanding issues so that, when the Board meets again, we can lend our support to the passage of this critical ordinance. In addition, we have requested (and received) from County Counsel's office, a copy of the revised version of the ISO that was discussed on October 8, 2002 and have used that as a template for our changes. To further assist the County in its efforts to address this matter, we are submitting to the Board and staff specific language that can be incorporated into the revised ordinance. That language has been provided to you as an attachment to this correspondence and can also be provided to you in an electronic format. Once again, CCA is most encouraged by the progress that has been made both during and following the October 8 Board meeting and is ready to voice its support for a revised ordinance. It is believed that the revisions suggested herein will help to ensure the adoption of a revised ordinance that withstands challenge, reflects the Board's desire for a comprehensive solution that improves safety for workers and the surrounding communities, and has set in motion a process that will ultimately apply to all persons who have a hand in ensuring the safe and incident free operation of these facilities. Thank you for the opportunity to clarify these revisions to the proposed ordinance. Should you have any questions or wish to meet, please contact me at 707-544-7455, ext 111. CCA and its member companies stand ready to assist the County in passing an ordinance that is fair, equitable and relates exclusively to industrial safety. Sincerely yours, Pat Leiser, President Copy To: Board Members, Contra Costa County Board of Supervisor Clerk of the Contra Costa County Board of Supervisors Dennis Barry, Contra Costa County Community Development Department Michael Kent, Contra Costa County Hazardous Materials Commission Randy Sawyer, Contra Costa County Health Services Department Board Members, California Contractors Alliance ORDINANCE NO. 2002- (CCA Revision 1 10/22/02) (OIL REFINERY WORKER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKILLS TESTING,DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended, by adding subdivisions (p) through(u), defining specified terms, to read: (p) "Bay Area Training Corporation Safety Orientation Program"means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q) "Covered Worker"means an employee of an oil refinery or oil refinery contractor engaged in new construction, maintenance, repair, or turnaround work at an oil refinery involving energized, pressurized, or control systems in the covered craft skill areas of electrical, metals, rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50%of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code("NAICS")of 324 (Petroleum.and Coal Products Manufacturing). (t) "Oil Refinery Contractor"means an independent contractor that provides labor and/or services to oil refineries for new construction, maintenance, repair, or turnaround work. (u) "Oil Refinery Safety Skills Test Program"means the oil refinery safety skills test program administered by the Bay Area Training Corporation on the effective date of this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Ords. 2002- § 1; 98-48 § 2.) (v) "Industrial Maintenance Mechanic"means an employee of an oil refinery or oil refinery contractor who routinely performs general maintenance and repair tasks involving several different construction craft disciplines. SECTION II. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements, is amended as follows: A. By deleting subsection(11), Contractors, of subdivision(a), Risk Management Program Elements. ORDINANCE NO. 2002- October 1,2002 it B. By adding subdivision (g), Contractor Safety, to read: (g) Covered Worker Safety. (1) Application. This section applies to oil refinery employees or oil refinery contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to Oil Refinery or Oil Refinery Contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, or other supply services. (2) Stationary source responsibilities. (A) The stationary source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B) The stationary source shall inform the contractor of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (C) The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision (a) of this section. (D) The stationary source shall develop and implement safe work practices consistent with subsection (2) of subdivision(a) of this section, to control the entrance, presence, and exit of the contractor and contractor employees in covered process areas. (E) The stationary source shall hire only contractors who comply with the provisions of subsection (3) (Contractor Responsibilities) of this subdivision. (F) The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) Oil Refinery or Oil Refinery Contractor responsibilities. (A) Commencing three years after the approval and publication by the California Apprenticeship Council of all industry specific craft tests related to certificates of equivalent training, under subsection 3(C)below, each Oil Refinery or Oil Refinery Contractor performing work to which this subdivision applies pursuant to subsection (1) of this subdivision shall employ(i) only journey level workers in an covered craft occupation who either have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection (3)(C) below, of this subdivision, (ii) employ only non journey level workers in an covered craft occupation in a ratio of no more than four(4)non journey-level workers per journey level worker., and (iii) employ only journey level workers in an covered craft occupation who have ORDINANCE NO. 2002- October 1,2002 completed at least 20 hours of training in either craft skills, construction techniques, and/or safety for that occupation within the last 12 months. (B) Each Oil Refinery or Oil Refinery Contractor is required to meet its need for journey level Covered Workers by first exhausting its pool of trained covered workers in each covered occupation to the extent that they are available in Contra Costa, Alameda, and Solano Counties. If a contractor exhausts its pool of journey level workers in Contra Costa, Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that journey level covered workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection(F)below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (i) (C) A journey level worker may obtain a certificate of equivalent training for an covered occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that occupation. For purposes of obtaining a certificate of equivalent training under this section, an Industrial Maintenance Mechanic may either complete a test specifically written for the multi-disciplinary position of Industrial Maintenance Mechanic or complete a test in the primary craft in which that person performs the majority of his/her work. The tests for all industry specific crafts shall be approved by the California Apprenticeship Council and administered by either(i) an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that occupation; (ii) an accredited public or private post-secondary education institution which has adequate facilities to for both the written and manual portion of the test; or, (iii) an independent,professional testing organization authorized to administer tests in the state of California which has adequate facilities to administer both the written and manual portions of the test. (D) The terms "apprentice" and"apprenticeable occupation"shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation"refers to an apprenticeable occupation. The term"journey level worker" shall have the same meaning as the term"journeyman" in the California Labor Code. A bona fide apprenticeship program is one that has been approved by the California Apprenticeship Council. has All journey level covered workers must complete at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months. (E) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii)The contractor shall assure that each ORDINANCE NO. 2002- -3- October 1,2002 contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii) The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by subsection (2) of subdivision(a) of this section. (v)The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (F) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(A) through(D) of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. (4) Oil Refinery Responsibilities. (A) Safety and Skill Training and Testing. (i)An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refineryjob to have passed the Oil Refinery Safety Skills Test Program. (B) Drug and Alcohol Program. Oil refinery contractors shall require their contractor- covered workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and "for cause testing," and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also consider the contractor safety record of the oil refinery contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. (Ords. 2002-_ § 2, 2000-20 § 1, 98-48 § 2.) SECTION III. SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any ORDINANCE NO. 2002- -4- October 1,2002 persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares its intent(1) that such provision be severable from the remainder of the ordinance, and(2)that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, :Board of Supervisors [SEAL] HAHAZMAT11ND0RDlf1xm1 100102 dtmfLwpd ORDINANCE NO. 2002- October 1,2002 ORDINANCE NO. 2002-_ (CCA.Revision 1. 10/22/02) (C"t NTRAC4O- R 011, REFINERY WORKER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKILLS TESTING, DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended, by adding subdivisions (p) through (u), defining specified terms, to read: (p) "Bay Area Training Corporation Safety Orientation Program"means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q) eGC:; wtnte t-Covered Worker" means an employee of an oil refinery or oil refinery contractor engaged in new construction,maintenance,repair, or turnaround work at an oil refinery involving energized,pressurized, or control systems in the covered craft skill areas of electrical, metals, rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program" means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code ("NAICS") of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Refinery Contractor"means an independent contractor that provides labor and/or services to oil refineries for new construction, maintenance, repair, or turnaround work. (u) "Oil Refinery Safety Skills Test Program's means the oil refinery safety skills test program administered by the Bay Area Training Corporation on the effective date of this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Orris. 2002-_ § 1; 98-48 § 2.) Iv) "Industrial Maintenance Mechanic"means an employee of an oil rfiu�ey or oil refinery contractor who routinely performs general maintenance and repair tasks involving several different construction craft disciplines. SECTION II. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements, is amended as follows: A. By deleting subsection (11), Contractors, of subdivision(a), Disk Management ORDINANCE NO. 2002- -1- October 1,2002 Program Elements. B. By adding subdivision(g), Contractor Safety, to read: (g) sw4or Covered Worker Safety. (1)Application. This section applies to„oil re(inery employees or oil refinery contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to Coil Refinery or Oil Re finery C;ontractors t w4oi�- providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, or other supply services. (2) Stationary source responsibilities. (A) The stationary source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs, (B) The stationary source shall inform the contractor of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (C) The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision (a) of this section. (D) The stationary source shall develop and implement safe work practices consistent with subsection (2) of subdivision(a) of this section, to control the entrance, presence, and exit of the contractor and contractor employees in covered process areas. (E) The stationary source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities) of this subdivision. (F) The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) Oil Refiner v or Oil Reth ery Contractor responsibilities. (,N) Evefy eentfaeter-per mfliagwofk tewhieh this subdivision applies pur-%iant to sabseotion (1 ofthis subdivision shall, during die f*­+ +1­_ ­'i 0 ,; of the wedEefs in eaeh .1__ by that eeatfaetef at the statienafy soufee ai-e 03-)-LA)-Commencing three years after the- approval acid ORDINANCE NO. 2002- -2- •eober 1,2002 publication by the California Apprenticeship Council of all industry specific-craft tests related to certificates-of equivalent training under subsection 3(C) below, each Oil„ Refinery or Oil Refiner=y 'contractor performing work to which this subdivision applies pursuant to subsection(1) of this subdivision shall employ(i) only journey level workers in anr��.o, 1&Leovered craft occupation who either have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(£►Q below, of this subdivision, (ii) employ only non:journey level workers in an apl) 4ioeab4e-covered craft occupation in a ratio of no more than four (4)non iourney-level workers per journey level worker._, and(iii) employ only journey level workers in an pprenticeable covered. craft occupation who have completed at least 20 hours of training in either craft skills, construction techniques, and/or safety for that occupation within the last 12 months. (GB) Each Oil-Be-finery-pr Oil Reirequired to meet its need for jotrrrtey level C"covered Vworkers by first_exhausti iits pool of hii4n,.4-trained covered workers in each a-p-prentic3eab overed occupation to the extent that,K rkrgthey are available in Contra Costa, Alameda, and Solano Counties. If contractor itsop of of jouni ill workers from in Contra Costa,Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that trained- orkers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection (F) below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (i)- _(DC) A journey level worker may obtain a certificate of equivalent training for an occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that occupation. For purposes of obtaining a certificate of equivalent training tinder this section, an Industrial Maintenance Mechanic may either conn lcte a test specifically written for the multi-disciplinga position of hidustrial Maintenance Mechanic or complete a test in.the primary craft in which thatep rson performs the majority of his/her work. The tests for all industry specific crafts shall be ene that is administer-ed by a bona fide appr-eiitieeship pFegfam for-that t . has ee �approved by the California Apprenticeship Council fi�- �„ and � administered by either i an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that occupation-, 00 an accredited public or private post-secondary education institution which has adequate facilities to for both the written and manual portion of the test; or, (iii) an independent, ORDINANCE NO. 2002- -3- 0mober 1,2002 professional testingorganizationauthorized to administer tests in the state of California which has adequate facilities to administer both the written and manual portions of the test. (ED) The terms "apprentice" and"apprenticeable occupation"shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation"refers to an apprenticeable occupation. The term"journey level worker" shall have the same meaning as the term"journeyman" in the California Labor Code. A bona fide apprenticeship program is one that has been approved by the California Apprenticeship__C pgjicil C,,,. eil ,,.„a tfia4 his graduated t+el.-Of.the -Noveinher _111 . t � .. • s +ri ko-t�e �it�+��dz�rds��ith-Eta--tom-last-nim-ye+�rs;��e-�l�at-h�+-�c�ated-r�tatarerttices-i+� o++c.h..<+t. The tefm ­tfai tied veiir . level worl(ef who ate (+f an appret+tic eshi.p...t�rc�t,=ra+��#ter tl��w+�rl�t�r's�tc�pY�tio�� ��1�}.�rc�v�t# k�} the this of-diflan, level . o +tlt�+ate{i-f+otrf-��n a}3prc i}li�eslr art gran .._fkw#fiat-w er s-eeoupatio+i.approved 1 �L the i E e , r. � or hashas All iounigy level covered workers must completed at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months. . tha Co� L�y 3 ffleil. (FE) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contractor shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii) The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by subsection(2) of subdivision(a)of this section. (v) The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. ORDINANCE NO.2002- -4- .-....... October 1,2002 (44F) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(A) through(BD) of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health,property, or essential public services. (4) Oil Refinery Responsibilities. (A) Safety and Skill Training and Testing. (i) An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refinery job to have passed the Oil Refinery Safety Skills Test Program. (B) Drug and Alcohol Program. Oil refinery contractors shall require their contractor- covered workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and"for cause testing," and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also consider the contractor safety record of the oil refinery contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. (Ords. 2002 § 2, 2000-20 § 1, 98-48 § 2.) SECTION III. SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares its intent(1)that such provision be severable from the remainder of the ordinance, and (2) that the remainder of the ordinance be given effect in accordance with the ORDINANCE NO. 2002- -5- October 1,2002 provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] H:IHAZMA'D1NDORDTfina1 100102 draft.wpd ORDINANCE NO. 2002- _6_ October 1,2002 .............................................................................................................................................................................................................................................................................................. _................................... _........................................................................ _ _ ................... ................................ Apprenfices-hipand Training Commiftee for the Elecirlical Consfrucfion Indusiry, MISSION STATEMENT Ar ��� r o, SKILL i H{P b 't The mission of the National Joint Apprenticeship and Training Committee is to develop and standardize training to educate the members of the International Brotherhood of Electrical Workers and the National Electrical Contractors Association; insuring and providing the Electrical Construction Industry with the most highly trainedand highly skilled workforce possible. AnoNAL Joy APPREI-MCESHIP.AND TRAmNG COMM=E Philosophy Statement Meeting the training needs of the Electrical Construction Industry is the primary objective of the NJATC. The foundation of our philosophy lies in a belief that training, and training alone, will determine the degree of employability for members of the International Brotherhood of Electrical Workers (IBEW) and the National Electrical Contractors Association (NECA). The NJATC believes that through quality training programs the membership of the IBEW will be provided with the skills, knowledge and abilities necessary to maintain performance superiority. This exceptional efficiency will enable members of NECA to produce the highest quality of work-at the lowest possible cost. The NJATC strives to provide the education and training necessary to improve the quality of life for all IBEW and NECA members. The NJATC believes that only through quality training programs can the membership be afforded employment which will provide a high standard of living. The NJATC recognizes there are no shortcuts to becoming a competent journey-level craftsman. Only through meaningful standards, adopted by a highly structured program devoted to appropriate guidance, personal commitment and consistent discipline, can this level of individual competency be accomplished. The NJATC believes a uniform National Training Program is essential to provide the most highly skilled workers and the most productive craftsmen. It believes that National Skills Standards are necessary to establish meaningful benchmarks which will allow the work processes that a journeyman must demonstrate to be identifiable and consistent The NJATC believes that through its National Apprenticeship Programs,aclear-cut path forcareer development and occupational training is provided. The opportunities afforded are.limited only by one's interest and aptitude. Meaningful, industry-driven apprenticeship produces competent craftsmen and thus insures the continued availability of a highly skilled workforce at minimum or no cost to the taxpayers. The NJATC believes it must continue to have a vision of the future while.remaining faithful to its original commitment to meet training needs. Maintaining focus on this central objective—Quality Training-=will lead the Electrical Construction Industry into a bright and prosperous future. The NJATC recognizes that its reason for existence revolves around serving and assisting the members of the National Electrical Contractors Association and the International Brotherhood of Electrical Workers at all levels—in all apprenticeship and training matters. The terms Journeyman, Journeyman Wireman, and Craftsmanship, as used in these Standards, are meant to define a recognized level of competency and include both male.and female. The science of electricity is constantly changing and expanding at an ever increasing rate. From its inception, the electrical industry has kept pace with new technologies and is now one of the largest industries in the United States. This rapid expansion means that the electrical apprentice must be given sound basic training in the knowledge of the trade, supplemented by sufficient instruction in the theories of electrical science. The electrical trade is unique in that it is mechanical, technical and professional. In order to meet industry demands in an ever evolving technological environment, the electrical industry must select individuals who have the aptitude to learn and develop the knowledge, skills and abilities necessary to proficiently perform the individual job tasks associated with the work processes of the trade. The industry must select and train individuals who will diligently work and study to stay abreast of current and future emerging technologies. The Electrical Industry, by its very nature, places a high degree of personal responsibility on each individual. While supervision is most often provided on the job,the electrical worker is constantly called upon to make decisions concerning proper performance methodology. Today's electrical installations are very complex and highly sophisticated. Faulty installations often prove to be extremely expensive and hazardous. Much of the complex wiring involved in the work is hidden from view when the job is completed; any defect in this hidden work can cause serious damage and prove to be extremely costly. The well-trained.electrical worker takes pride in the appearance of their work, and in its technical correctness and structural soundness. The Joint Apprenticeship and Training Committee (JATC), representing the parties to the local Collective Bargaining Agreement(CBA)-The National Electrical Contractors Association(NECA)and The International Brotherhood of Electrical Workers (IBEW) - has dedicated its time to develop an efficient training program so the apprentice can,through a systematic program of schooling and on-the-job training, become a well-qualified electrical worker. The degree of success the JATC has in its operation will depend entirely upon the willingness of all local parties of the electrical industry to cooperate in this joint activity. Quality training remains a high priority with the IBEW and NECA. All functions of the JATC shall be on the basis of a nonprofit endeavor. The JATC will adopt and promote nationally developed Apprenticeship Standards and Curricula to insure quality apprenticeship and training for the industry in the best interest of the apprentice, management, labor, the customer and the public. + Apprenticeship ■ Apprenticeship is a chance for you r ' ; a to become a skilled tradesperson, a chance to become a great "natural resource"--the crafts worker who implements the ideas and theories of engineers and scientists and puts those ideas to work in industry. Apprenticeship not only provides instruction on the technical aspects of ,;; the trade, but also incorporates 2 planned, day-by-day, on-the-job experience under the qualified supervision of a skilled craftsperson. It is a training program which includes x � t{ paid employment in occupations where knowledge of specific and related skills and technology is essential. i The IBEW and the electrical :: industry recognize the value of apprenticeship in maintaining and continuously supplying a skilled, proficient and technically up-to-date work force. This is the reason labor and management work together at the national and local levels to sponsor apprenticeship programs. The IBEW believes the best apprenticeship programs are provided for in written agreements between an employer,or group of employers and a local union. This agreement establishes the program, defines it and sets specific standards. The agreement also establishes whether 4. it develops future supervisors, the program will be run solely by an 5. it provides versatile workers, employer or jointly by a labor- 6. it attracts capable young men management committee. The IBEW and women to industry, and favors the establishment of a joint 7. it raises the general skill level in labor-management committee, the an industry. Joint Apprenticeship and Training Being an apprentice or entering into Committee (JATC), which is apprenticeship means, in most cases, responsible for overseeing the specific you have signed your name to a apprenticeship program, written agreement. This written industry is interested in agreement is called an indenture. The apprenticeship because: apprenticeship agreement or 1. it provides trained crafts workers indenture is a recognized legal to meet present and future needs, contract which specifies the 2. it increases worker productivity, responsibilities of the contracting 3. it improves employer/employee members: the employer, union, relations, registering agency and apprentice. This indenture must specify: 1. the specific trade to be taught, 2. the number of hours of on-the- job training and 3. the number of hours of related instruction, Why Apprenticeship? Apprenticeship is career preparation. It not only provides training for a specific job, but also teaches broad, related skills which prepare you for employment in an entire industry. After.apprenticeship you can probably move to any part of the country and find a job in the electrical industry which calls for the X skills you learned as an apprentice. In apprenticeship you are given the opportunity to develop individual capabilities and independence of judgment. Labor and managements .h` r look to apprenticeship as a training ground for future supervisors, ,', kj managers and leaders. Apprenticeship can be compared to q. a complete college education. The difference is that your certificate of completion as an apprentice means you have marketable skills and have achieved journeyman status. Your certificate affords you immediate recognition by labor and management. It also shows that, in Marlboro, MD, 20772, or callin addition to having received a good Y g income throughout your years of 301/249-2042. apprenticeship, you have completed a schedule of on-the-job work Who Is Involved in Apprenticeship? experiences and have received theoretical and practical instruction to Standards and rules for apprenticeship support these work experiences. are set down by labor and management. In the United States, the National These standards must include certain Joint Apprenticeship and Training minimum standards established by Committee distributes a brochure the U.S. Department of Labor or the titled Selection Testing for state, province or territory in which the Apprenticeship—Information for apprenticeship Applicants. You may request a copy of program is established. this brochure by writing to the National Joint Apprenticeship and These minirnum standards must Training Committee, 10201 Trade include the following provisions: Zone Avenue, Suite 105, Upper 1. the term of apprenticeship; 2. the starting age of an apprentice, which may not be less than 16 years; 3. the schedule of work processes in which an apprentice will receive training; 4. the hours of organized related instruction, not less than 144 hours per year; 5. the schedule of progressively increasing wages; 6. the recognition for previous ' 1 h ! experience, 7. the recognition for successful completions; 6. the periodic evaluation of the apprentice's progress, both in job performance and in related instruction; �aK} 9. safety training and safe working " conditions; 10. the qualification requirements for f the selection of apprentices; 11. the proper supervision of on-the- job training with adequate facilities to train apprentices; and 12. a pledge of nondiscrimination in 5 all;phases of the apprentice's employment and training. In the United States, federal legislation directs the secretary of labor to formulate and promote the advancement of labor standards to protect the welfare of apprentices and establish basic training standards. The Federal Committee on Qualifying apprenticeship programs Apprenticeship, with an equal number can be registered with either the of members from labor and Department of Labor's Bureau of management, advises the secretary of Apprenticeship and Training or a state labor on apprenticeship matters, while apprenticeship council. In states which the Bureau of Apprenticeship and do not have an apprenticeship council, Training carries out the secretary's the bureau acts as the registering responsibilities in the area of agency. These supervisory agencies apprenticeship. ensure that training standards are Apprenticeship standards are maintained, that there is no designed to ensure that, at the discrimination in the selection process completion of your program, you will be and that records are kept of your recognized throughout the industry as progress in apprenticeship. a highly skilled, well-trained, journey- In Canada, generally provincial or level electrician. These standards territorial legislation provides for assure you and your future employer regulation of apprentice training, that your training has been relevant. establishment of trade-advisory committees and the appointment of a director of apprenticeship. Through a cooperative program, all provinces and , territories accept certification for apprentices who meet the interprovincial standard in a given trade. Apprenticeship and the IBEW The IBEW has long been regarded , as one of North America's leaders in it apprenticeship. IBEW local unions sponsor more than 1,000 apprenticeship programs covering more than 30 occupational i classifications within the construction, industrial and service branches of the electrical industry. Of course, not all occupational classifications are apprenticeable. Those employers in the electrical industry which do not offer apprenticeships usually offer some other type of training programs. �.. No two apprenticeship programs are identical, for each is tailored by the ` 4 sponsoring committee---usually a � 4 JATC---to meet the need of its branch ' of the industry, occupational classification and existing labor k conditions. Industrial apprenticeships usually 4 are available only to present employees of the firm sponsoring the program. In the electrical construction industry, apprentices are selected by If you are interested in applying for local joint apprenticeship and training apprenticeship openings in your area, committees from qualified outside the local office of your state, provincial applicants. or territorial employment service can Apprentices are required to furnish inform you which programs have their own hand tools and supplies. The openings, when these programs IBEW also recommends that all accept applications and the address apprentices purchase their own where you may get an application, textbooks so they will have a personal If you want additional information on reference library when they become apprenticeship programs in your state, journeymen. contact the Bureau of Apprenticeship Fees and charges vary from and Training, U.B. Department of program to program. In most cases Labor, 200 Constitution Avenue, N.W., there is no charge for classroom Washington, DC 20210, In Canada, instruction. You should inquire about contact the provincial or territorial office casts involved when requesting an of apprenticeship, training or application for a specific program. education. BINGHAM McCUTCHEN FciCS1Cri11e CONSIDER WIT[ - DATE October 28, 2002 OUR FILE NUMBER: 01947-059 NAME FAX PHONE TO Mike Fenn (925)335-1299 (925) 335-1290 Contra Costa County SiIvano B. Marchesi (925) 646-1079 (925)335-1500 Contra Costa County FROM Sanford M. Skaggs (925)975-5390 (925) 975-5310 s.skaggs@bingharn.com bingharn.corn PAGES(INCLUDING THIS COVER PACE): 15 8in.9ham McCulchen 1.1.1' RE Suit.210 1333 NOrih Cuffornio 81+d. Message: Ptd 6ax'v Walnut Creak,CA 9449(-1 270 02S,437,1000 425,473,41340 lax bingham eom Basion Haroard Landon las Angeles New York :an Francisco Silicon Valley Singapore Walnul Creek Washington For transmission problems,please caU(925) 975-5386 Caution—Confidential The tnforniarion to thisfar is confidenttat and may also be privileged attorney-client information and airorney workproduct. It is inrended onlyfor the recipism(s) named above, If you aren't a named recipient or hWher authorized representative, any reati1q, use, copying or diselosure ojihis fax is stricily prohibited. Ifyou aren't a named recipient,please call the above number(collect)now and return this fax to us b)+}trail at the above address. narik you. vv i. y,Vr LVW I. J •LV r Ir --w 1 - .ry rr1,V it LI IJ BINGHAM McCUTCHEN October 25, 2002 Direct: (925)975-5310 s.skaggs@bingham.com VIA TELECOPIER Bingham McCulehen LLP Michael Henn Suite 210 1333 North California Blvd. Special Projects Manner P©Boxy Community Development Department WalnuT Creak,CA Contra.Costa County 9ds96.1270 County Administration Building 651 Pine Street,Noah Wing,4th Floor 925.937.6000 Martinez, CA 94553 935.975.5390 fox ItE: Amendments to the Industrial Safety Ordinance binghom,com Proposed Negative Declaration (County File No. CP02-30) Gaston Dear Mr. Henn. Hartford London We have been asked by Shell Oil Products E .S. to review and submit Las Angeles comments on its behalf on the proposed Negative Declaration being circulated New York San Francisca in conjunction with the amendments to the Centra;:Costa.County Industrial Silicon valley Safety Ordinance ("ISO"). Shell is concerned that the proposed amendments Singapore to the ISO will increase rather than decrease safety risks at refineries, and will Walnut Croak cause delays and disruption of refinery operations with consequent negative Washingian impacts on the environment. In support of the proposed amendments to the ISO,the County relies on an incomplete and unsupported Negative Declaration,which erroneously concludes that there will be no significant impacts on the environment. For the reasons set forth below, the Negative Declaration does not comply with the basic requirements of the California Environmental Quality Act, Public Resources Code sections 21000 et sett., and the County must prepare an environmental impact report if it elects to proceed with the proposed ISO amendments. A. Negative Declaration Standard. CEQA establishes a strong presumption in favor of preparation of an E1R. If the project at issue may cause a significant impact on the environment, then the lead agency must prepare an EIR. Pub. Res. Code §§ 21080(d) & Michael Henn October 28, 2002 Page 2 21151(a); CEQA Guidelines, 14 Cal. Code Regs. § 15064(a)(1), (f)(1). A Negative Declaration is therefore appropriate only where there is no substantial evidence in light of the whole record that the project may cause a significant effect on the environment. Pub.Res. Code § 21080(c)(1), CEQA Guidelines, 14 Cal. Code Regs. § 15070(a). . CEQA thereby establishes a"low threshold" for requiring the preparation of an EIR. Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296, 310 Bingham McCutcwr LLP (198 8) (quoting No Oil, Inc. v. City ofLos Angeles, 13 Cal. 3d 68, 84 (1974)). 61ngharn Coin Under the well-established"fair argument" standard, an EIR is required whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the environment. No Oil, 13 Cal. 3d at 75;Friends of B Street v. City of Hayward, 106 Cal. App. 3d 988, 1000-03 (1980). If any aspect of the project may result in a significant environmental impact, an EIR must be prepared even if the overall effect of the project is beneficial. CEQA Guidelines, 14 Cal. Code Regs. § 15063(b)(1). Furthermore, if substantial evidence supports a fair argument that a project may have a significant environmental effect, the lead agency must prepare an EIR even if it is also presented with other substantial evidence indicating that the project will have no significant effect. CEQA Guidelines, 14 Cal. Code Regs. § 15064(f)(1). The fair argument standard thus prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. Stated another way, "(i)f there [is] substantial evidence that the project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration,because it could be `fairly argued' that the project might have a significant environmental impact." Friends of B Street, 106 Cal. App. 3d at 1002; see also No Oil, 13 Cal. 3d at 85 (EIR is necessary when there is conflicting evidence as to whether the project may have significant impacts). In evaluating whether substantial evidcncc supports a"fair argument" that a project may have a significant effect on the environment, the lead agency must examine the entire administrative record. Pub, Res, Code §§ 21080(c)-(d), 21082.2. In this case,the record as a whole contains substantial evidence supporting a fair argument that the County's proposed ISO amendments may have significant environmental impacts. As a result, the County's decision not to prepare an EIR.violates CEQA. CEQA requires the County to prepare an EIR vvr. 6L. L VL .J. Lvrrr .r.Mrrr rrriry++v rvrdi. r+.. ,•o• .. rwv . rrw Michael Henn October 28, 2002 Page 3 to analyze the potential environmental effects of the proposed ISO amendments and to evaluate project alternatives and mitigation measures. B. Analysis The Negative Declaration circulated for the ISO amendments does not satisfy the requirements of CEQA. The proposed amendments to the ISO would restrict contractors' ability to hire qualified, experienced workers, and thus Binghom McCulchen «P increase safety risks. The restrictions on the labor pool may also cause Eyingham,ccm significant delays with refinery maintenance and turnarounds, further compounding the; environmental impacts. There are also potential negative environmental impacts from the proposed ordinance's reliance on programs approved by the California Apprenticeship Council ("CAC") in light of the U.S.Department of Labor's pending derecognition proceedings. None of these potential environmental impacts have been evaluated or considered. 1. The Proposed Ordinance Decreases Safety The conclusions in the Negative Declaration are based on the entirely unsupported assumption that the proposed changes would increase safety at oil refineries and other industrial facilities. However, as both the County Public and Environmental health Advisory Board (PEHAAB) and the Planning and Policy Development Committee of the County Hazardous Materials Commission(HMC) have found, there is no substantial evidence that these amendments would improve safety. On the contrary,the evidence shows that the proposed revisions are far more likely to have the opposite effect. The amended.ISO would severely restrict the labor pool from which contractors may hire skilled workers for refinery maintenance and turnarounds, and may therefore force contractors to hire less experienced and less qualified workers. The Initial Study attached to the Negative Declaration repeatedly cites improved worker safety as the basis for its conclusions that no significant impacts are reasonably probable in any of the areas studied. For example, it asserts that"[t]he changes proposed would cause the use of better-trained workers, which would reasonably have the effect of reduced incidents involving hazards and release of hazardous materials" (Neg. Decl.,p.10). This assumption is directly contrary to the findings of the P HA.B and of the HMC's Planning and Policy Development Committee made after detailed review, analysis and consideration of available evidence. At the request of the Board of Supervisors, both PEHAB and the HMC undertook a comprehensive review of the proposed ISO amendments in order to make recommendations to the Board regarding their adoption. The HMC's U�I, L6, LUU1 L I f IWI G1 RunhlYl IYILI,u I lInciV YC; IN, )100 P, Michael Henn October 28, 2002 Page 4 Planning and Policy Development Committee and PEHAB's Environmental Subcommittee were charged with developing recommendations for their respective bodies. These committees met monthly from January to June, 2002, to review and discuss available evidence and develop recommendations. The fall HMC and PEHAB met jointly to hear testimony from labor and industry groups and the public regarding the proposed changes. Based on this intensive review,both the HMO's Planning and Policy Binghom McCutchen LLP Development Committee and PEHAB's Environmental Subcommittee Unyhum cssm concluded that there was no substantial evidence that the proposed changes would improve worker safety. In voting against the proposed amendment, the Planning and Policy Development Committee cited the lack of any evidence that contract workers trained in programs approved by the CAC had better safety records than those trained elsewhere. The Environmental Subcommittee reached the same conclusion. Based on these findings, P'EHAB has recommended that the Board reject the contractor training requirements.! These conclusions are entirely consistent both with the evidence and with the operative provisions of the ordinance. The amended ordinance would require contractors to hire"trained" workers from Contra Costa, Alameda, and Solano Counties if available, before hiring from outside these three counties. A "trained worker" is defined for the first three years as a journey level worker who is a graduate of an apprenticeship program approved by the CAC. After three years, the definition expands to include apprentices of an apprenticeship program approved by the CAC. To qualify as a"trained worker" under the amended ordinance,journeymen must complete 20 hours of training every year at an apprenticeship program approved by the CAC. Journeymen trained at apprenticeship programs that are not approved by the CAC must still meet this requirement and they must also pass a test that is either administered by a CAC-approved apprenticeship program or approved by the CAC and administered by an accredited public college. If there is an inadequate supply of"trained!' workers in Contra Costa, Alameda, and SoIano Counties, contractors may expand their hiring pool. However, contractors are still restricted to journeymen and apprentices who 1 The HMC was unable to garner sufficient votes for a specific recommcndation and hence made no recommendation to the Board. U1, 1, LC. LUUL J LINVI DINUMNY1 IMIUU1t1nLIV YN IVU, )470 r, o/ 17 Michael Henn October 28, 2002 Page 5 graduated from or are enrolled in CAC-approved apprenticeship programs.a Journeymen must also complete 20 hours of training through a CAC-approved apprenticeship program every year. The proposed ordinance restricts contractors from hiring workers who live outside of Contra Costa, Alameda, and Solano Counties and who are not graduates or enrollees of an apprenticeship program approved by the CAC. It thus precludes contractors from hiring skilled, experienced oil refinery Bingham McCuOmn LLP woTkers who were trained on the job or through other apprenticeship bingh®m cc„ programs. As a result, the amendment will likely force contractors to hire workers who have little or no training or experience in refinery work, even though they meet the ordinance's definition of a"trained worker." By limiting the supply ofwell-qualified workers and compelling contractors to hire inexperienced workers,the ordinance has a significant potential,to cause increased safety risks, In turn, these heightened safety risks significantly increase the potential for a chemical accident or release. The Negative Declaration wholly fails to consider these factors in concluding that there is no potential for significant environmental impacts. None of the materials cited as "Sources" in the Initial Study support its assertion that worker safety would improve as a result of the ISO amendments. Virtually all of the cited materials that address the issue of worker safety analyze the relative safety records of direct-hire versus contract workers. None address the relative merits of CAC-approved apprenticeship programs versus other types of training and experience in improving worker safety, and none contain any evidence indicating that restricting the qualified labor pool in the manner proposed will improve safety. On the contrary, they demonstrate that workers who have more on-the-job experience,training and familiarity 2 The narrow exception relating to testing-in described above applies here as well. However, we question whether this provision would really enable non-CAC approved apprenticeship program graduates to test in. CAC-approved apprenticeship programs generally do not,and have no incentive to, otTer a test to such joumeymen because doing so would only increase competition with their owix journeymen. As for testing-in through a test offered at an accredited public school,we are unaware of a single two-year or four- year college that currently provides such an option and the record is devoid of any evidence that such tests exist. Moreover,journeymen who passed a test administered by a public school would still need to find a CAC-approved apprenticeship program willing to provide them with 20 hours of training a year. VU I LU. LUUL 1. L 11191 L311VUIINVi IW,UU I L,HLIV IIL IVU. lt7o F. (I I Michael Henn October 28, 2002 Page 6 with petrochemical plants are likely to be substantially safer than workers who have little or no such familiarity, training or experience. As noted in the Industrial Relations article Jolt Safety and Contract Workers in the Petrochemical Industry [R,ebitzer 1995) —cited as "Source No. 9 in the Initial Study"—refinery operations involve complex and interrelated processes, many of which are implicated during refinery turnarounds. Various components in a petrochemical plant can interact with each other in ways that Binghom McCutchen LLP are both unplanned and difficult to comprehend. (Id p. 46) Studies cited in binghom.com the same article show that because of the"complex and tightly coupled" refinery production processes, serious accidents are often the result of an unexpected series of events triggered by small and otherwise innocuous accidents or events. (Id. p. 47) Workers with less experience with the overall facility may be less able to predict the safety consequences of their actions, regardless of how much training they have received in their particular craft. Stated differently, such workers may lack the facility-specific knowledge and experience required for optimum safety. (1d.) Although the primary focus of the article is on contractors with less experience in refinery operations, the same logic applies to the workers employed by such contractors. These considerations are particularly important in the context of refinery turnarounds, for which relatively targe numbers of specialized contract workers are normally required. Such turnarounds typically require shutting down highly productive and expensive capital equipment and hence must be completed quickly and efficiently. (Rebitzer at p. 42) The need for trained workers, experienced and familiar with refinery operations is particularly acute in this context, and the restrictive provisions of the ISO amendments will preclude refineries from using the workers best suited to the task. In addition to the evidence cited in the "Sources," numerous letters, declarations, articles and other materials already in the record—as well as the conclusions of PEHAB and the Hazardous Materials Commission's Planning and Policy Development Committee o-demonstrate that the proposed amendments will not increase safety and are more likely to have the opposite effect. The conclusions to be drawn from this evidence were aptly summarized in the letter of Jay Finkelman, Ph.D., C.P.E., submitted to the Board on September 17`h (copy attached). Dr. Finkelman, an industrial and forensic psychologist, concluded, after careful review of the proposed amendments, that: (1) There is no credible rationale or empirical research that supports the utility of imposing a CAC-approval or training requirement on workers from a safety perspective; ml b1NUhAM 1&UU1UhtN K NU. 3496 r. 6/15 NEchael Henn October 28, 2002 Page 7 (2) There is no basis for concluding that CAC-approved programs are superior to other training or experience requirements imposed by refinery contractors— and there is some basis to conclude that they may be inferior; and (3) To impose standards that artificially restrict who can provide the training and assessment to refinery workers "-nay prove counter- productive to the safety agenda by reducing the opportunities that Binghcm McCulchen LLP workers have to obtain necessary training— and thus reducing the bingham.evm population of properly trained and certified workers." 2. The Proposed Ordinance May Cause Significant Delays and Consequent Environmental Impacts Restricting the labor pool may have additional environmental impacts caused by delays in completing refinery turnarounds and scheduled and unscheduled maintenance. The unavailability of properly trained, experienced workers could delay or disrupt performance of required refinery turnarounds. Increasing the number of inexperienced workers also increases the chances that problems or unanticipated events may occur during turnarounds that such workers are not equipped to handle, thus necessitating shutdowns while the incidents are assessed. Furthermore, during a turnaround, it is common to identify additional maintenance work that needs to be undertaken that is not within the initial scope of work. Such maintenance work may require specialty labor that could not immediately be secured consistent with the terms of the proposed ordinance,resulting in delays in resumption of refinery operations. Also, such unavailability in the event of any unanticipated outage or unscheduled maintenance--whether or not in the context of a turnaround-- could significantly extend the shutdown period. These delays, in turn, would disrupt the supply of gasoline and diesel fuels to Northern California. The State of California requires unique fuel specifications for both gasoline and diesel in order to meet air quality standards. As a result, California relies upon only 13 in-state refineries to produce most of its gasoline and diesel. Contra Costa County's four refineries supply approximately one-third of the gasoline and one-half of the diesel for the entire State of California. Delays in securing qualified labor could significantly hold up the return to service of these refineries after an unscheduled outage or other unanticipated event, causing statewide shortages of gasoline and diesel and higher fuel prices. Such shortages could, in turn, -necessitate use of unreformulated fuels--resulting in adverse air quality impacts -- or importation of gasoline and diesel via truck from other states, with attendant risks of accident. UUI, Lb, Mi 3: 11HM biNUHRM MCCUfCHIN K NU, 34H N. 9/15 Michael Henn October 28, 20102 Page 8 Delays in maintenance and extended shutdowns of refinery units could also result one or more of the following significant environmental impacts (1) Delays in maintenance work could cause the refinery to run out of storage capacity for"residuals" (the heavier parts of the barrel of crude oil), making it necessary to transport the excess away from the plant, significantly increasing transportation risks and environmental hazards. Bingham McCulthen «p (2) Delay could preclude the refinery from restarting its process units, biapham.cam including those that are also Hazardous Waste Incinerators. The refinery would then have to transport the hazardous waste off-site for disposal, creating additional transportation and disposal hazards. (3) Delay that precluded the refinery from restarting units that produce low BTU gas units could cause an increase in ernissions of oxides of nitrogen into the atmosphere. (4) If the refinery could not restart its acid regeneration facility on time, it would have to transport spent acids as far away as Southern California, again increasing transportation risks. (5) belays in replacing catalysts in units that perform environmental functions (such as the sulfur recovery unit("SRU'])would require a shut down of all units connected to the SRU. The refinery operator would need to obtain a variance from the Bay Area Air Quality Management District to continue operating the unit until the maintenance work could be completed. During this period, there would be significantly increased emissions (up to many tons) of sulfur dioxide per day. (6)Unavailability of qualified labor could cause delays in implementation of projects undertaken to reduce potential safety risks or environmental impacts. Delay in implementing these projects would, in turn,delay tate environmental protection these projects offer. These projects include the installation of an ammonia tank to reduce emissions of oxides of nitrogen(NOx);the installation of a new catalyst bed to reduce NOx; and the installation of equipment to reduce the risk of failure of other equipment as identified in an incident investigation following a fire or an explosion. v,, i. to. tuut ltrivi Diivuntiivi iyi,LuiuriEiv urs iuv, 34vo r. iu/ i7 Michael Henn October 28, 2002 Page 9 3. The Proposed Ordinance's Reliance on the CAC Causes Further Concern By relying so heavily on CAC-approved programs as the benchmark for selection of qualified workers, the proposed ordinance raises additional concerns as well. The Department of Labor's Office of Apprenticeship, Training, Employer and Labor Services ("OATELS") has initiated derecognition proceedings against the CAC. OATELS initiated these Bingham McCutchan LLP proceedings because it believes the CAC unlawfully limits its approval of Esingham,com apprenticeship programs to one for every craft or trade per geographic area, unless there is a demonstrated need for an additional program. OATELS's finding that the CAC unlawfully restricts the number of approved apprenticeship programs confirms that the proposed ordinance,by confining the labor pool to CAC-approved apprenticeship programs, unduly limits the available labor pool for covered work on oil refineries. The derecognition proceeding instituted by the federal government injects a further clement of confusion and uncertainty into the proposed ISO amendments. For example, what will happen to the ISO if the CAC is derecognized? Will the ordinance's provisions still require hiring of workers offormerly CAC-certified programs? Will further amendments to the ordinance be needed to clarify this, and how quickly are such amendments likely to occur? In the interim, will refineries and contractors be at risk of violation of the ordinance if they guess wrong about the impact of the derecognition? The lingering confusion and uncertainty surrounding the potential derecognition of the CAC and probable delays compound the safety and environmental concerns highlighted above. C. Conclusion There is substantial evidence supporting a fair argument that the proposed changes to the ISO may have a significant effect on the environment, Accordingly,the County may not rely on a negative declaration. Rather, to comply with CEQA's requirements, it must prepare an EIR to evaluate the potential environmental impacts of thus project. The failure to prepare an EIR would constitute a prejudicial abuse of discretion under the statute. UGI, id, M2 3; LFM 6INUHAM MUUUIUHtN K NU, J49d r. 11/ 1) .Michael Henn October 28,2002 Page 10 Thank you for your consideration of these comments,which, given the limited time available to us for review, are necessarily preliminary, Our review and investigation are ongoing and we plan to provide additional continents prior to or at the Board hearing on the proposed amendments. Sincerely yours Binghcrtn McCutchen LLP Jan IfMo S' s bin�hrtm.com vG1. 10, LVVL }; 11rir1 oiivunmm IV,L,VIl,IIL11 If Irv. Jrsv c, 9-1.8-202 3:15PM FROM JAY F I WELMAN PND 415 409 9193 p.2 ; ,1 Jay M. Finikelman,Ph.D., C.P.E. i Industrial/Forensic PWtihologfst 2200 Pacific'Avenuie, Penthouse 12 D ' San Francisco, California 94115-14LSS � Telephone:(416)409.9191 Fusitrdle: (416)409-9193 � jfinkelman@xtdh&pring.com 01;4WAW AW it1 POW*Peyrlio! Umued 1*#rh*)%,bt ;! AMWiean PAWd of 1'tofcad=#J Fvythalofty stege of cautomie unarieo 13 trd ax Torensic eoyrholcry Stott of New York September 16, 2002 Board of Supervisors , Cotra Costa County i 6911 Pine Street ; Martinez, California 94553 RE? INDUSTRIAL SAFETY ORDINANCE Proposed Amendment—Contractor Safety i Deur Board Members: i I have reviewed the County of Contra Costa's current Industrial Safety Ordinances (Ord. No, 95-48),the proposed amendment regarding `Contractor Safety"which would add a new;action 450.016(C)and relevant documents previously submitted into the administrative record. 4ui If cations I am an industrial and Forensi ul i, lto. LUU1 �:iirivi DINUMMM 1Gk'U14'1111 M, iuu, It 70 r, I)/ I7 9-16-202 3.19PM FROM .JAY FI NKELMAN PHD 416 409 9193 P. 3 • f � it 3 Factors and Ergonomics Society and of the American Academy of Forensic Psychology. I was awarded a Diplomate from the American Board of Professional Psychology arl'd'from the American Board of Forensic Psychology where I am also a follow. I i I am 9 Certified Personnel Consultant from the National Association of Personnel Consultants and a Certified Employment Specialist From the California j Association of Personnel Consultants. I am a licensed psychologist in the State of California and in the State of New York and listed in the National register of Health Service Provfderrs in Psychology. I am a member of Psi Chi, Delta Sigma Rho-- Tau Kappa Alpha and Beta Gamma Sigma, and received the Excellence in TeachrngAward from the�Ity University of New York, No Justification for Limiting Ag.prQval process to GAC There is no credible rationale that I can imagine, nor empirical research that I have reviewed, that supports the utlilty of imposing a California Apprenticeship C60ncll ("CAC`)— or any proprietary and thus limiting—approval or training ' re,4irement on industrial contractors, from a safety and ergonomic perspective. There are typically multiple approaches and methodologies that can be utilized in the design of a credible and effective industrial safety program. i There Is no basis to conclude that CAC-approved programs are superior to those mandated by current guidelines administered through contractors utilizing non- CAC approved training programs—and there Is some basis to conclude that they may be inferior. It is my understanding that according to Cal-OSHA data, trade = ti union workers in the refinery building trades have nearly twice the job injuries as Ah'eir non-union colleagues (June 10, 2002 letter from George B. Smith, ARtAOIS, to Contra Costa County Hazardous Materials Commission). While it is reasonable to impose minimum standards on the content of any safety program—and on the performance requirements of those successfully 1 cor�pleting such a program—it is not reasonable to artificially restrict who can 1 pi�onde such training and assessment To do so may prove counterproductive to 1 r e safety agenda by reducing the opportunities that workers have to obtain nedessaEry training—and thus reducing the population of property trained and certified workers. Nee for Sutist2111y Sla nEficant Jus ' rcation of Restricted Proamn From a scientific safety perspective, it is Indefensible to Impose any requirement on a training or evaluation program that does not manifest R statistically sigificant correlation with a reliable and valid criterion measure of safety. in other words, there is no empirical justification to require that anything be done, in s ' V11 1, Z01 1UU1 3. 22rlyl D11NUMMM lylt'�.UILnrn M 9—IS-202 3: 16PM FROM JAY F INKELMAN PHD d 7 5 409 5193 P. d jj :a the interest of safety, that does not have an actual demonstrable relationship to a defensible measure of safety, J, The implication Is that unless there is a scientifically established relationship ' been completion of a CAC approved training process and increased safety or r , iced accidents there is no justificatlon to impose such a requirement. In fact]such an artificial restriction Is far more likely to be counterproductive to a legitimate safety objective. R duction of Qualified WoMorce Through,Anorenticeship Prouraims ' } t Not�urpdsingly, the net effect of Imposing workforce certification requirements i that are unrelated to the ability to perform and'be qualified for a job assignment will only serve to unnecessarily reduce the available labor force. Whenever unnecessary requirements or thresholds are Introduced in order to (artificially) restrict access to employment opportunities—the results are never good, There is, of course, a legitimate use for certification and performance requirements for certain jobs—including certain refinery workers. However, this i rationale should not be used to prejudicially restrict access to certification pia rams. To do so would violate fundamental fa�irriess in the workplace—as well a# enerally accepted human resource management practices. Adverse Impact tin Selection patios ; Tachnically, anything that is done to limit the population of available. similarly qualified workers, into a training or assessment program, serves to adversely intxpase the salecffon ratio. This means that If fewer workers are permitted to enter the selection `funrnel" —a higher percentage of those workers will have to be hired or assigned to most whatever job requirements they are being recruited to fulfill. The math Is irrefutable. If an employer Is forced to hire(or select) more of a given population of workers with specific skill requirements —it will inevitably be forced i to dig deeper into the pool of applicants or prospects. This typically entails a de radation of the-average skill level of the final workforce that Is selected.And ttjee is no credible gain to be derived from this, restriction. In fact, only political agendas,—not safety agendas—are served by limiting access to qualified and effective training programs. No one has a monopoly on why may provide such essential programs.There is certainly no evidence that c. ntractors utilizing non-CAG approved training programs have less capability or 2centive or experience in dayeloping and implementing these programs than ritractors utilizing CAC-approved programs. Any program or process that restricts access of potentially qualified workers will be detrimental to the qualification process and is likely to impede overall safety at such a facility. k d 9-16-202 3 a 17PM FROM JAY F I NKELMAN PHD A r s QS 9193 P.5 Lank of Empirical Research Justification � i Alpieliminary review of the human factors and ergonomics literature also does 1 not reveal any evidence or basis for assuming the superiority of a union based apprenticeship training program over an employer sponsored training program in i assuring workplace safety, Thus, the proposed change is not defensible from an emOlricai perspective. Sincerely, d J.,Y,M. pinkelman, Ph.D., C,P.rz, r � , r t d . 1 .r r i ii i 4 K CALIFORNIA CONTRACTORS ALLIANCE P.O. Box 601,Benicia,CA 94510 Voice Mail(707)746-5594 www.ccaconstructs.org �,* October 25, 2002 RECE ASPEN Two,INC. OCT 2 8 2002 BENICIA FABRICATION&MACHINE,INC. Hon. John Gioia CLERK BOARD�c,Jp���,'!S ! S Chairmen, Board of Supervisors cc�-ra�cc�s-�ac�. Contra Costa County COREY DELTA CONSTRUCTORS 11780 San Pablo Ave. Suite D EI Cerrito, CA 94530 .IEfFCO PAINTING&COATING,INC. Re: Revisions to the Industrial Safety Ordinance - November 5, 2002 PETROCHEM INSULATION,INC. V Dear Chairman Gioia: PLANT MAINTENANCE,INC. On behalf of the California Contractors Alliance (CCA) and its 11 industrial contracting member companies, I would like to SONNIKSON AND'STORDAHL compliment you and the other members of the Contra Costa CONSTRUCTION,INC. County (County) Board of Supervisors (Board) on your willingness to listen to and incorporate CCA's issues into the proposed • revisions to the Industrial Safety Ordinance (ISO). Moreover, since STARCON INTERNATIONAL,INC. the October 8, 2002 Board meeting, I have personally been impressed with the quality of the dialogue resulting from that meeting and what I perceive in its aftermath to be a sincere desire TIM COMPANY,INC. on the part of many of the affected parties, both public and private, THE TIMEC GROUP OF COMPANIES to meet with CCA and address its concerns as they relate to the proposed changes to the ISO. I believe it is a testament to your UCI CONSTRUCTION,INC. leadership that this is now occurring. V CCA and its member companies believe, first and foremost, in UNDERGROUND CONSTRUCTION safety. Our livelihood depends on delivering quality contracting COMPANY,INC. services without incident or injury and the exemplary records of our membership clearly speak to this priority. Along that line, our former objections pertained to what we believed to be exclusionary economic provisions unrelated to safety. Again, we wish to compliment your leadership and accept your pledge that the end product will be a non-discriminatory ordinance with safety as its sole focus, along with the Board's stated intent to expand the ordinance to include ALL workers in sensitive positions, be they contractor or refinery employees, union or merit shop workers. S 6cro f yr L►. Cc�cr 75e / Z !Yf 14> To that end, CCA is prepared to support the proposed revisions to the IBC if the modifications recommended by our organization and authorized by the Board for inclusion are in fact incorporated into the final, revised version that is scheduled for consideration on Tuesday, November 5, 2002. Provided below are those items that we believe were authorized by the Board for inclusion. This will allow you and the other members of the Board time to review our modifications in advance of the meeting, subject to your confirmation that "what we heard" is indeed "what you said," and providing sufficient opportunity, should it be necessary, to discuss and resolve any outstanding issues so that, when the Board meets again, we can lend our support to the passage of this critical ordinance. In addition, we have requested (and received)from County Counsel's office, a copy of the revised version of the IBC that was discussed on October 8, 2002 and have used that as a template for our changes. To further assist the County in its efforts to address this matter, we are submitting to the Board and staff specific language that can be incorporated into the revised ordinance. That language has been provided to you as an attachment to this correspondence and can also be provided to you in an electronic format. Once again, CCA is most encouraged by the progress that has been made both during and following the October 8 Board meeting and is ready to voice its support for a revised ordinance. It is believed that the revisions suggested herein will help to ensure the adoption of a revised ordinance that withstands challenge, reflects the Board's desire for a comprehensive solution that improves safety for workers and the surrounding communities, and has set in motion a process that will ultimately apply to all persons who have a hand in ensuring the safe and incident free operation of these facilities. Thank you for the opportunity to clarify these revisions to the proposed ordinance. Should you have any questions or wish to meet, please contact me at 707-644-7455, ext 111. CCA and its member companies stand ready to assist the County in passing an ordinance that is fair, equitable and relates exclusively to industrial safety. Sincerely yours, Pat Leiser, President Copy To: Board Members, Contra Costa County Board of Supervisor Clerk of the Contra Costa County Board of Supervisors Dennis Barry, Contra Costa County Community Development Department Michael Kent, Contra Costa County Hazardous Materials Commission Randy Sawyer, Contra Costa County Health Services Department Board Members, California Contractors Alliance ORDINANCE NO. 2002-_ (CCA Revision 1 10/22/02) (OIL REFINERY WORKER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKILLS TESTING, DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended, by adding subdivisions (p) through(u), defining specified terms,to read: (p) "Bay Area Training Corporation Safety Orientation Program" means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q) "Covered Worker" means an employee of an oil refinery or oil refinery contractor engaged in new construction, maintenance, repair, or turnaround work at an oil refinery involving energized, pressurized, or control systems in the covered craft skill areas of electrical, metals, rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code ("NAICS") of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Refinery Contractor"means an independent contractor that provides labor and/or services to oil refineries for new construction, maintenance, repair, or turnaround work. (u) "Oil Refinery Safety Skills Test Program"means the oil refinery safety skills test program administered by the Bay Area Training Corporation on the effective date of this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Ords. 2002-_ § 1; 98-48 § 2.) (v) "Industrial Maintenance Mechanic"means an employee of an oil refinery or oil refinery contractor who routinely performs general maintenance and repair tasks involving several different construction craft disciplines. SECTION II. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements, is amended as follows: A. By deleting subsection (11), Contractors, of subdivision(a), Risk Management Program Elements. ORDINANCE NO. 2002- October 1,2002 B. By adding subdivision(g), Contractor Safety, to read: (g) Covered Worker Safety. (1) Application. This section applies to oil refinery employees or oil refinery contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to Oil Refinery or Oil Refinery Contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, or other supply services. (2) Stationary source responsibilities. (A) The stationary source,when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B) The stationary source shall inform the contractor of the known potential fire, explosion, or tonic release hazards related to the contractor's work and the process. (C) The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision (a) of this section. (D) The stationary source shall develop and implement safe work practices consistent with subsection (2) of subdivision (a) of this section, to control the entrance, presence, and exit of the contractor and contractor employees in covered process areas. (E) The stationary source shall hire only contractors who comply with the provisions of subsection (3) (Contractor Responsibilities)of this subdivision. (F) The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3)of this subdivision. (3) Oil Refinery or Oil Refinery Contractor responsibilities. (A) Commencing three years after the approval and publication by the California Apprenticeship Council of all industry specific craft tests related to certificates of equivalent training, under subsection 3(C) below, each Oil Refinery or Oil Refinery Contractor performing work to which this subdivision applies pursuant to subsection (1) of this subdivision shall employ(i) only journey level workers in an covered craft occupation who either have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection (3)(C) below, of this subdivision, (ii) employ only non journey level workers in an covered craft occupation in a ratio of no more than four(4)non journey-level workers per journey level worker., and (iii) employ only journey level workers in an covered craft occupation who have ORDINANCE NO. 2002- -2- October 1,2002 - - completed at least 20 hours of training in either craft skills, construction techniques, and/or safety for that occupation within the last 12 months. (B) Each Oil Refinery or Oil Refinery Contractor is required to meet its need for journey level Covered Workers by first exhausting its pool of trained covered workers in each covered occupation to the extent that they are available in Contra Costa, Alameda, and Solano Counties. If a contractor exhausts its pool of journey level workers in Contra Costa, Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that journey level covered workers are unavailable. In the event of workforce reductions, a contractor shall lay-off`other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection(F)below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (i) (C) A journey level worker may obtain a certificate of equivalent training for an covered occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that occupation. For purposes of obtaining a certificate of equivalent training under this section, an Industrial Maintenance Mechanic may either complete a test specifically written for the multi-disciplinary position of Industrial Maintenance Mechanic or complete a test in the primary craft in which that person performs the majority of his/her work. The tests for all industry specific crafts,shall be approved by the California Apprenticeship Council and administered by either(i) an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that occupation; (ii) an accredited public or private post-secondary education institution which has adequate facilities to for both the written and manual portion of the test; or, (iii) an independent,professional testing organization authorized to administer tests in the state of California which has adequate facilities to administer both the written and manual portions of the test. (D) The terms "apprentice"and "apprenticeable occupation" shall have the same meaning in this section as those terms do in the California Labor Code. The term. "occupation"refers to an apprenticeable occupation. The term"journey level worker" shall have the same meaning as the term "journeyman" in the California Labor Code. A bona fide apprenticeship program is one that has been approved by the California Apprenticeship Council. has All journey level covered workers must complete at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months. (E) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contractor shall assure that each ORDINANCE NO. 2002- -3- October 1,2002 contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii) The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by subsection(2) of subdivision(a) of this section. (v) The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (F) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(A)through (D) of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. (4) Oil Refinery Responsibilities. (A) Safety and Skill Training and Testing. (i) An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refineryjob to have passed the Oil Refinery Safety Skills Test Program. (B) Drug and Alcohol Program. Oil refinery contractors shall require their contractor- covered workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and "for cause testing," and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also consider the contractor safety record of the oil refinery contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. (Orris. 2002-_ § 2, 2000-20 § 1, 98-48 § 2.) SECTION III. SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any ORDINANCE NO. 2002- -4- October 1,2002 persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares its intent (1) that such provision be severable from the remainder of the ordinance, and (2) that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] H:\HAZMATUNDORDttinal 100102 draft.wpd ORDINANCE NO, 2002- October 1,2002 ORDINANCE NO. 2002-_ CA Revision 1 10/22/02) (C0NTRA-!T0:R--011 REFINERYWORKER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKILLS TESTING, DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended,by adding subdivisions (p) through(u), defining specified terms, to read: (p) "Bay Area Training Corporation Safety Orientation Program"means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q) " nR+at4or--Covered Worker"means an employee of an oil refinery or oil refinery contractor engaged in new construction, maintenance, repair, or turnaround work at an oil refinery involving energized, pressurized, or control systems in the covered craft skill areas of electrical, metals, rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code ("NAICS") of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Refinery Contractor"means an independent contractor that provides labor and/or services to oil refineries for new construction, maintenance, repair, or turnaround work. (u) "Oil Refinery Safety Skills Test Program"means the oil refinery safety skills test program administered by the Bay Area Training Corporation on the effective date of this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Ords. 2002-_ § 1; 98-48 § 2.) (v) "Industrial Maintenance Mechanic"means an amp loyee of an oil r eCgc ry car oil reflnery contractor who routinely performs general maintenance and repair tasks involving several different construction craft disci lip nes. SECTION II. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements, is amended as follows: A. By deleting subsection (11), Contractors, of subdivision (a), Risk Management ORDINANCE NO. 2002- October I,2002 Program Elements. B. By adding subdivision(g), Contractor Safety, to read: (g) CenEr-atom+=Covered Worker Safety. (1) Application. This section applies to-.o-11 rc(1r�c.i `e riplx��ees or oil refinery contractors performing new construction, maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to Oil Refinery or Oil Refinery Contractors ;f,.,��Y e4it-,providing incidental � services which do not influence process safety, such as janitorial work, food and drink services, laundry, or other supply services. (2) Stationary source responsibilities. (A) The stationary source, when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B) The stationary source shall inform the contractor of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process. (C) The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision (a) of this section. (D) The stationary source shall develop and implement safe work practices consistent with subsection (2) of subdivision(a) of this section, to control the entrance,presence, and exit of the contractor and contractor employees in covered process areas. (E) The stationary source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities) of this subdivision. (F) The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) tail Refinery or Oil ReMiery Contractor responsibilities. CA 0 -e ker-s in eaeli €emi 0;3-L,�)_Commencing three years after the approval and ORDINANCE NO. 2002- wbor t,2002 publication by the California Apprenticeship Council of all industry specific craft tests related to certificates of equivalent training under subsection 3(C)below, each . til Refinery or Oil Refinery Ceontractor performing work to which this subdivision applies pursuant to subsection(1) of this subdivision shall employ(i) only journey level workers in an appfefltieeable covered craft_occupation who either have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(DQ below, of this subdivision, (ii) employ only es non journey level workers in an appfetiic-e€ble-covered craft occupation een in a ratio of no more than four(4)non journey-level workers per iourney level worker., and(iii) employ onlyjoumey level workers in an a 7 fenitc'-eable covered craft occupation who have completed at least 20 hours of training in either craft skills, construction techniques, and/or safety for that occupation within the last 12 months. (CB) Each Oil Refinery or Oil Rel ineryContractor required to meet its need for jcicirney level Covered VVworkers by first exliaustiii its Rool of hi-r=inig-trained covered workers in each a. entre e-covered occupation to the extent that erscltey are available ffem labor hifing faefliti in Contra Costa, Alameda, and Solano Counties. If a contractor attempts--t btai*4-r-aine(lexliausts its pool of journey level workers f iab r-hir-i g4i i�in Contra Costa, Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that teed-'oil„ piney level covered workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection (F)below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (i) (DC) A journey level worker may obtain a certificate of equivalent training for an appiil-le covered.occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona fide apprenticeship program for that occupation. For purposes of obtaining a certificate of equivalent training under this section wi Industrial.Maintenance Mechanic i-pay eitlier complete a test specifically written for the multi-disciplinary osition of hidustrial Maintenance Mechanic or complete a test in the primary craft in which that person performs the majority of his/her work. The tests for all industry specific crafts shall be ene that is adfflinister-ed by a bona fide appr-entieeship program fef tha4 e offe that has been approved by the California Apprenticeship Council fror.+1" -and administered by either i an accredited four or two year public college with adequate facilities for both the written and manual portions of the test for that occupation i i an accredited_public or private post-secondary education institution 'which has adegLlate facilities to for both the written and manual portion.of the test: or, (iii) an independent, ORDINANCE NO. 2002- -3- October 1,2002 professional testing organization authorized to administer tests in the state of California which has adequate facilities to administer both the written and manual portions of the test. (ED) The terms "apprentice" and"apprenticeable occupation" shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation"refers to an apprenticeable occupation. The term"journey level worker" shall have the same meaning as the term"journeyman"in the California Labor Code. A bona fide apprenticeship program is one that has been approved by the California Apprenticeship-Ce7uncil ''« r, ;' ' , 1 11-4 r1- c# r:tppreotices..in 20W,-)..y...114 t i--sva:r-iat,rcrfi-41e(t4f}b Has of, tile f1lostree fit thinee Yea The ie-Yg, '*trained ..r.,,-y,nrY"-"r17c2ijTt7..j_i-)-.d Lii-H '}te'4ft, . ajoumey level, an ilticesl-ip..pregrant-#of-t4i it-worker's-oce-upa4eii-itlIlyroved by the i67)r-iiia Appfetitieeship GoEiHeil; or-(ii) more than three years aftef ion of Joamey level Wed, Who lVa" g �Elaat�{l._lao�r���n..al prc t�t+ee } i r l r gram {�r...tt}afi w<�rl�er's oce tap=tic 7.approved lel sfk-ao . _' and,--iii-cirt-rtir--c,`zx:��-'iW-lZ:f) hashes All jouniey level covered workers must completed at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months. appr-entioe5 (EE) (i) The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii) The contractor shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii) The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by subsection (2) of subdivision(a) of this section. (v)The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. ORDINANCE NO. 2002- -4- October 1,2002 (GF) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(A) through(Li) of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life,health,property, or essential public services. (4) Oil Refinery Responsibilities. (A) Safety and Skill Training and Testing. (i) An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refineryjob to have passed the Oil Refinery Safety Skills Test Program. (B) Drug and Alcohol Program. Oil refinery contractors shall require their contractor- covered workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and"for cause testing," and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also consider the contractor safety record of the oil refinery contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. (Ords. 2002-_ § 2, 2000-20 § 1, 98-48 § 2.) SECTION III. SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended, and nor shall it be deemed, to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law, the Board of Supervisors declares its intent (1)that such provision be severable from the remainder of the ordinance, and(2) that the remainder of the ordinance be given effect in accordance with the ORDINANCE NO. 2002- October 1,2002 provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] HAHAZMATUNDORDifrnal 100102 draR.wpd ORDINANCE NO. 2002- October 1,2002 r. v CALIFORNIA CONTRACTORS ALLIANCE P.O. Box 601,Benicia,CA 94510 Voice Mail (707)746-5594 www.ccaconstructs.org ASPEN TIMCO,INC. October 25, 2002 FLEE T OCT 2 8 2002 BENICIA FABRICATION&MACHINE,INC. Hon. John Gioia CL BOARD OF aIJFt Fiv`ISUfCS V Chairman, Board of Supervisors coNr9acosAc11 . Contra Costa County COREY DELTA CONSTRUCTORS 11750 San Pablo Ave. Suite D EI Cerrito, CA 94530 .IEFFCO PAINTING$t COATING,INC. Re: Revisions to the Industrial Safety Ordinance - November 5, ♦ 2002 PETROCHEM INSULATION,INC. Dear Chairman Gioia: PLANT MAINTENANCE, INC. On behalf of the California Contractors Alliance (CCA) and its 11 V industrial contracting member companies, 1 would like to SONNIKSON AND STORDAHL compliment you and the other members of the Contra Costa CONSTRUCTION,INC. County (County) Board of Supervisors (Board) on your willingness to listen to and incorporate CCA's issues into the proposed T revisions to the Industrial Safety Ordinance (ISO). Moreover, since STARCON INTERNATIONAL,INC. the October 8, 2002 Board meeting, I have personally been T impressed with the quality of the dialogue resulting from that meeting and what I perceive in its aftermath to be a sincere desire TIMEC COMPANY,INC. on the part of many of the affected parties, both public and private, THE TIMEC GROUP OF COMPANIES to meet with CCA and address its concerns as they relate to the V proposed changes to the ISO. I believe it is a testament to your UCI CONSTRUCTION,INC. leadership that this is now occurring. T CCA and its member companies believe, first and foremost, in UNDERGROUND CONSTRUCTION safety. Our livelihood depends on delivering quality contracting COMPANY,INC. services without incident or injury and the exemplary records of our membership clearly speak to this priority. Along that line, our former objections pertained to what we believed to be exclusionary economic provisions unrelated to safety. Again, we wish to compliment your leadership and accept your pledge that the end product will be a non-discriminatory ordinance with safety as its sole focus, along with the Board's stated intent to expand the ordinance to include ALL workers in sensitive positions, be they contractor or refinery employees, union or merit shop workers. To that end, CCA is prepared to support the proposed revisions to the ISO if the modifications recommended by our organization and authorized by the Board for inclusion are in fact incorporated into the final, revised version that is scheduled for consideration on Tuesday, November 5, 2002. Provided below are those items that we believe were authorized by the Board for inclusion. This will allow you and the other members of the Board time to review our modifications in advance of the meeting, subject to your confirmation that "what we heard" is indeed "what you said," and providing sufficient opportunity, should it be necessary, to discuss and resolve any outstanding issues so that, when the Board meets again, we can lend our support to the passage of this critical ordinance. In addition, we have requested (and received) from County Counsel's office, a copy of the revised version of the ISO that was discussed on October 8, 2002 and have used that as a template for our changes. To further assist the County in its efforts to address this matter, we are submitting to the Board and staff specific language that can be incorporated into the revised ordinance. That language has been provided to you as an attachment to this correspondence and can also be provided to you in an electronic format. Once again, CCA is most encouraged by the progress that has been made both during and following the October 8 Board meeting and is ready to voice its support for a revised ordinance. It is believed that the revisions suggested herein will help to ensure the adoption of a revised ordinance that withstands challenge, reflects the Board's desire for a comprehensive solution that improves safety for workers and the surrounding communities, and has set in motion a process that will ultimately apply to all persons who have a hand in ensuring the safe and incident free operation of these facilities. Thank you for the opportunity to clarify these revisions to the proposed ordinance. Should you have any questions or wish to meet, please contact me at 707-644-7455, ext 111. CCA and its member companies stand ready to assist the County in passing an ordinance that is fair, equitable and relates exclusively to industrial safety. Sincerely yours, d �ZD Pat Leiser, President Copy To: Board Members, Contra Costa County Board of Supervisor Clerk of the Contra Costa County Board of Supervisors Dennis Barry, Contra Costa County Community Development Department Michael Kent, Contra Costa County Hazardous Materials Commission Randy Sawyer, Contra Costa County Health Services Department Board Members, California Contractors Alliance PERMANENT PROVISION—Journey Level Workers Contractors shall only hire journey level workers in an apprenticeable occupation who: Have successfully completed all of the Have obtained a certificate of equivalent tests required to graduate from an training by completing a test consisting of a apprenticeship program for that written exam and manual skill occupation approved by the CAC demonstration Test inbya Test has been approved administereby the CAC and bona fide or administered by an apprenticeship accredited four or two program year public college All contractor employees (in the skill areas of electrical,metals,rotating equipment and instrumentation)must complete the BATC Safety Orientation Program.* All contractor employees (in the skill areas of electrical,metals,rotating equipment and instrumentation)that work independently and/or who are lead workers must pass an Oil Refinery Safety Skills Test Program administered by BATC.* All contractor employees (in the skill areas of electrical, metals,rotating equipment and instrumentation)must participate in a Drug and Alcohol Testing program.* All apprenticeable journey level workers must annually complete 20 hours of training in skills, construction technique, and safety for their occupation administered by a bona fide apprenticeship program or by a 4 year or 2 year public college. Bona Fide Apprenticeship Program--"One that has been approved by the CAC and that has graduated apprentices in each of the most recent five years." Exceptions: 1. 1f Trained Workers not available after 2 days, other workers may be hired. 2. Contractors performing immediately necessary work after an emergency. *These requirements are effective upon passage of the ordinance. PERMANENT PROVISION--Journey Level Workers Contractors shall only hire journey level workers in an apprenticeable occupation who: Have successfully completed all of the Have obtained a certificate of equivalent tests required to graduate from an training by completing a test consisting of a apprenticeship program for that written exam and manual skill occupation approved by the CAC demonstration Test is Test has been approved administered by a or by the CAC and bona fide administered by an apprenticeship accredited four or two program year public college All contractor employees(in the skill areas of electrical,metals,rotating equipment and instrumentation)must complete the BATC Safety Orientation Program.* All contractor employees(in the skill areas of electrical,metals,rotating equipment and instrumentation)that work independently and/or who are lead workers must pass an Oil Refinery Safety Skills Test Program administered by BATC.* All contractor employees(in the skill areas of electrical,metals,rotating equipment and instrumentation)must participate in a Drug and Alcohol Testing program.* All apprenticeable journey level workers must annually complete 20 hours of training in skills, construction technique, and safety for their occupation administered by a bona fide apprenticeship program or by a 4 year or 2 year public college. Bona Fide Apl)renticeship Prosiram--"One that has been approved by the CAC and that has graduated apprentices in each of the most recent five years." Exceptions: 1. If Trained Workers not available after 2 days, other workers may be hired. 2. Contractors performing immediately necessary work after an emergency. * These requirements are effective upon passage of the ordinance. y,,. `t •4. fyy'i' ` "�� ..,;.�:JV ""� UTILITY aytYj J°xn Ryd'/n a'�y �4•• �d'0 U/ F18. P[R R UTILITY PAMELA AGUILAR,Pr"de t UkLR OIL KUsuft CNBMICXL JOHN DALRYMPLE,Exiscutlw DWactor sS OIL !NICK i UTILITY CN6MiCXL CAW'" ,w ntr abor Council of Contr Chats County j y® � ;'_ ECUCATKIN AFL— CIO ipCKINN CAN FED RATION OF LABOR AND CONGRESS OF INOUSTR GANI A'TIONS NIA LABOR FEDERATION,A 1333 PINE STREn SUTTE ARTIN \ " � AtiRiCULTLtR! TELEPHONE: f3;ctlt 0 81 eets Thi nesday MAILING ADDRESS: P.O.BOX 389 FLAX: t MARTENEIF,CA 94363 Awl- Tuesday, HiTuesday, November 05, 2002 Statement from John Dalrymple, Executive Director Of the Contra Costa Labor Council, on the Amendment to the Industrial Safety Ordinance. Hello, my name is John Dalrymple, Executive Director of the Contra Costa Central Labor Council. I'm here representing over 85,000 members of the AFL-CIO in this county. There are few issues that concern my membership more then the question of safety in our chemical plants and refineries. As such, it is very significant that before you is a proposal that has the best of what both the workers in these plants and the refinery owners have proposed to strengthen the County's Industrial Safety Ordinance. The proposal before the Board of Supervisors includes the key ingredients of the proposed ordinance suggested by County refineries: • Refinery contract workers will have to complete the Bay Area Training Corporation Safety Orientation program. • Dead workers or independent workers in metal crafts at refineries will have to have passed the Oil Refinery Safety Skills Program. • Contract workers will be subject to random and "for cause" drug and alcohol testing. • Refineries will have to consider a contractor's safety record when contracts are awarded. Thus, the essential features of the refinery's safety proposals would be adopted. With respect to worker skill requirements, the proposal before the Board of Supervisors contains the main features suggested by the Building Trades and would require workers to be enrolled in or graduates UA LOCAL 342 JOINT APPRENTICESHIP AND TRAINING &w &J�e, wa& C,&&ft gown 9 (925)dib tf730 fig:(925)US."M November 4, 2402 John Gioia Chair, Board of Supervisors 651 Pine Street iv u v 5 LIl(12 Martinez, CA 94553 CLERK BOARD OF SUPERVISORS CONTRA COSTA CO- RE:Amendments to Industrial Safety Ordinance Lear Supervisor Gioia: I am the `training Coordinator for the Plumbers and Steamfitters Local #342 Joint Apprenticeship and Training Program. The apprentice program for pipefitter / steamfitter is a 5 year training program. The apprentices are required to complete 1080 hours of classroom training and 9004 hours of on-the-job training. Our classes are all registered as Diablo Valley College courses,and our instructors are California credentialed teachers. The program has been approved by the California Apprenticeship Council and is subject to audit by the Division of Apprenticeship Standards. The annual budget for our training program is in excess of $2,040,440. The training for the pipefitter/steamfitter classification is focused on industrial work,with a great deal of the training specifically applicable to both refinery new construction and refinery maintenance. This training includes training in the installation, maintenance, rehabilitation, and demolition of pumps, heaters, coolers, heat exchanges, condensers, steam piping and related equipment, message tubing, vacuum tubing, instrumentation and control piping, oil burners, stockers, fuel gas burners, tanks and related equipment. The training in these subjects requires at least 4,500 hours of on-the-job training. In addition, our training program includes all welding process related to the installation maintenance, rehabilitation and demolition of high pressure piping, pipe bending and pipeline work. The on-the-job training hours for this component of our training program is at least 1500 hours. All of this training is specifically relevant to refinery work including new construction, turnarounds, maintenance, and refinery repair. Assuming that an apprentice worked an average of 2000 hours per year, it would take one of our apprentices at least three years to acquire the skills necessary for this work. In addition, the apprentice would be required to undergo a significant amount of classroom work on these subjects and the apprentice would have to complete both written and manual tests. I hope this information is helpful to your deliberations. Sincerely, Sill Blalock Training Coordinator ORNER?kpapo� Bollermakers Local Lodge 549 Joint Apprenticeship Committee Fred L. Fields Otis Edwards A �O Business Manager/Secretary Treasurer Apprenticeship Coordinator NOV 5 202 November 4, 2002 The Honorable John Gioia Chair,Board of Supervisors Contra Costa County 651 Pine Street Martinez CA 94553 Re: Amendments to Industrial Safety ordinance Dear Supervisor Gioia: I understand statements have been made that our joint labor management apprenticeship program only trains workers for new construction, and not for refinery maintenance. Only someone who lacks any familiarity with our training program would make such a statement. Our training programs for Boilermaker Apprentice and Journeyman Upgrading focus entirely on the industrial sector including refinery maintenance. The Boilermaker Union does not perform residential or commercial work. A graduate Apprentice must complete a four year training program that includes a minimum of 6000 hours of on the job training, 1000 hours of classroom training, self-study lessons, hands on job modules, and yearly testing. Our program is approved by the California State Apprenticeship Council and subject to audit by the Division of Apprenticeship Standards. Apprenticeship Training for the Boilermaker classification is focused on industrial work, with training specifically applicable to both refinery maintenance and new construction. Our training starts with a 10 hour OSHA course in construction safety and health and other safety related courses. Instruction and training are provided in the installation, maintenance, rigging, and demolition of reactors, furnaces, boilers, reboilers, NOX systems, precipitators, tanks, columns, flue gas and air ducts, stacks, flare stacks, burners, scrubbers, heaters, air coolers, heat exchangers, condensers and other related equipment. Our training also includes specialty welding applications and high pressure and non pressure welding processes. 2191 Piedmont Way • Pittsburg, California 94565 phone: (925) 427-0826 • fax: (925) 427-5980 1 All Boilermaker Apprenticeship and Journeyman Upgrading Instructors are certified through the State of California Commission on "Teacher Credentialing. To renew this credential, our instructors must complete two years of successful teaching, Level I and Level II requirements of an approved program of personalized preparation, the health and education unit, and must receive the recommendation of a Commission-approved Local Education Agency or an employing school district. The Boilermaker Joint Apprenticeship program has been reviewed and approved and is subject to audit by the State of California. We believe that our training standards are the best in the industry. Sincerely, EL Otis Edwards Apprenticeship Coordinator Boilermakers Local 549 GEORGE MILLER 01STRICT OFFICES: 7TH DISTRICT,CALIFORNIA suss 203 1333115/ILLOW 203 ROAD 22DS RAYBURN HOUSE OFFICE BUILDING CaNS452a W^ShwaroN,OC.20615450`7 {922 9}51 6 Sa2-TSBa (202)229-;20$5 SCO n ��� of the Ott' 322D BLume Owe www.houso.gov/gaorgsrnillor ...-- yw SUITE 281 DANIEL W6RS8 , RIOHMano,CA SWO CHIEF OF STAFF ou�Q of a TP (5101 202 bEiaa COMMITTEE TTEE WORKFORCE a jl�Cgtt�ri, 0C51ry„[1G�y07 {y+} 1Y10 Gamma STREET ALLWO,CA94590 pNSENIOR DEMOCRAT ORCE 711XST5JJ111��°� QUL SENIOR ors>woauT (707)045-1980 COMMITTEE ON RESOURCESRS TTY(202)225-1904 C{. RM.CONTFt 0ty57A�1St? May 23,2002 Leslie Stewart, Chairperson Hazardous Materials Commission of Contra Costa County 20 Allen Street Martinez, CA 94553 Fax: 370-5098 Dear Ms. Stewart: I am aware that the Building and Construction Trades Council of Contra Costa County proposed a training amendment to the Industrial Safety Ordinance. I am writing to express my strongest support for steps leading to enhanced worker training at industrial facilities in our communities. This proposal is a very good step in this direction. As we have seen, proper training of industrial workers in our community is a life and death issue. I believe that this amendment Will enhance safety and enhance the productivity of workers and the productivity of industries in our community. I urge you to take necessary steps to ensure worker and community safety. Thank you very much for your consideration of these views, G.Y.ly, � George Mille Member of Congress cc. Greg Feere, President,Building and Trades Council Contra costa County PRINTED ON RECYCLBa PAPER DISTRICT OFFICES STATE CAPITOL 2901 CONCORD BOULEVARD ROOM 3080 CONCORD,CA 84519 ,SACRAMENTO.CA 95854 �y r y yy�y� y ��..yy *�p{�� yyy� �y� Y[�(625)602.656'3 TEL 16Is)443i`d0856iA 44j4CA6iL[. G traXc9aslsoa-63oe FAx 1616!446`2327 JOINT GOVERNMSNY CIENTaR 4a0 W[s'f jKo STREET SENATOR ANTIOCH.CA 94506 EE�S Y[L1626,734-1461 STANDING COMMITT TOM TpRLAKSc�N Fnx 1644,77a`>s I ya LOCAL GOvERNMENT CHAIR SEVENTH SENATORIAL DISTRICT OUDLIN SATal.ure OFRICr& 100 CIVIC PLAZA HCLECT COMMITT9915 OUGLIN,CA 94368 560-6360 12AY ARCA INFRASTRUCTURE J+ FAXZl.16291 329.721Q FAX!'J 251 3.3'4.731& p May 23,2002 Leslie Stewart,Chair,and Committee Members Contra Costa County Hazardous Materials Commission 20 Allen Street Martinez, CA 94553 Dear Chairwoman Stewart and Commission Members: I support the training amendments to the Industrial Safety Ordinance that have been proposed by the Building and Construction Trades Council of Contra Costa County. There is no question that the adequate training of workers improves safety. The County is considering many proposals to improve safety at the refineries.I believe that improved training requiremenTs will contribute to improving safety. The current provisions of the County's ISO require that each contractor assure each employee is adequately trained, However,there are no training standards in the ordnance and no requirements for even minimum training. As I understand it,the proposed amendments would require,after a three-year phase-in period, t workers be enrolled in or be a graduate of apprenticeship programs approved by the State of Ca ifornia. The amendments would additionally require journey level workers to receive an additional 20 hpurs of training per year- I understand these training programs have been approved for both the union and non-union sectlprs. In addition, the ordinance would allow workers to qualify if they had completed a program for a cgrtificate of equivalent training. This provision is a further assurance that everyone who wants to complete the training will have an opportunity to do so. Once again,I believe the use of workers trained in state-approved programs will contribute positively to the overall effort to improve safety. I urge the Hazardous Materials Commission to recommend adoption of these important amendments for consideration by the Board of Supervisors. Sincerely, `Xj�w 07;;Jowbw Tom Torlakson ccs Supervisor John Gioia,Chair,Board of Supervisors Supervisor Glover Supervisor OeSauinier Supervisor Uilkema Supervisor Garber Dion Louise ro n V r ASSEMBLYWOMAN,FOURTEENTH DISTRICT CHAIR,ASSEMBLY HUMAN SERVICES CALIFORNIA LEGISLATURE•STATE CAPITOL•SACRAMENTO,CA 95814•(918)319-2014•FAX(916)319.2114 C BUDGETES: BUDGET JUDICIARY REVENUE AND TAXATION BUDGET SUBCOMMITTEE ON HEALTH AND HUMAN SERVICES(SUB 1) SELECT COMMITTEES: COASTAL PROTECTION May 23, 2002 MENTAALL N EHEALTH JOINT TASK FORCE ON WORKFORCE INVESTMENT To Members of the Contra Costa County Hazardous Materials Commission: I am writing to support the training amendments to the Industrial Safety Ordinance that have been approved by the Building and Construction Trades Council of Contra Costa County. There is no question that the training of workers improves safety. There are many things the County should do to improve safety at the refineries. Training requirements seem like a minimum step. The current provisions of the County's ISO provide that each contractor should assure that each employee is adequately trained. There are no training standards in the ordinance and no requirements for even minimum training. The proposed amendments would require, after a 3-year phase-in period that workers be enrolled in or graduates of apprenticeships programs approved by the State of California. The amendments would additionally require journey level workers to have an additional 20 hours of training per year. The reliance on programs already in existence that must meet publicly established standards and that are subject to audit by a public agency is a definite improvement over the current system. We understand that these training programs have been approved for both the union and the non-union sectors, so the use of approved programs seems fair. In addition, the ordinance would allow workers to qualify if they had completed a program to obtain a certificate of equivalent training. This provision is a further assurance that everyone who wants to complete the training will have an opportunity to do so. These amendments do not seem to impose an unfair burden on the industry. Not only do the amendments have a 3-year phase-in period, but also they also only require the industry contractors make an effort for 2 business days to hire trained workers. If those workers cannot be located, the industry may obtain workers from any source. The amendments can be fairly described as nothing more than requiring the industry to give a first preference to trained workers. There is no reason to think that such a step will harm the industry. On the other hand, the use of trained workers will surely contribute to an overall effort to improve safety. DISTRICT OFFICE:918 PARKER,BERKELEY,CA 94710•(510)540.3660•FAX(510)540.3655 DISTRICT OFFICE:101 BROADWAY,RICHMOND,CA 94804•(510)234-0211•FAX(510)2340213 I urge the Hazardous Materials Commission to recommend adaption of these important amendments. Thanks for your consideration. Seely, Dion S. Aroner DSAlbrs STATE CAPtT0L COMMITTEES P.O.BOX 942649 �'g CHAIR,WATER,PARKS&WILDLIFE SACRAMENTO,CA 94249-0011 ARTS,ENTERTAINMENT SPORTS, (916)319-2011TOURISM,AND INTERNET MEDIA FAX(916)3192111 `�+'�+ BUDGET GOVERNMENTAL ORGANIZATION DISTRICT OFFICEy ` UTILITIES AND COMMERCE 815 ESTUDILLO STREET T SUB COMMITTEES MARTINEZ,CA WZ53d r y" BUDGET SUBCOMMITTEE#3,RESOURCES (925)372-7990 7�,{ �r 1r SELECT COMMITTEES FAX(925)372-0934 JOSEPH CANCIAMILLA CALIFORNIAWINE ASSEMBLYMEMBER,ELEVENTH DISTRICT LOW PERFORMING SCHOOLS PROTECTION OF INLAND WATERWAYS May , 2002 TRANSPORTATION CONGESTION RELIEF Supervisor John Gioia, Chair Contra Costa County Board of Supervisors 651 Pine Street Martinez, CA 94553 Dear Supervisor Gioia: As you consider amendments to the Industrial Safety Ordinance I would like to express my support for the effort to improve training and safety for Contra Costa County workers and communities, particularly at our local refineries. I am aware that the Board of Supervisors is currently considering several proposals to improve safety at facilities in the county. Current provisions of the County's Industrial Safety Ordinance do not contain any established training standards or minimum training requirements. I believe that the improved training requirements suggested will help to achieve the goal of a safer environment not only for our workers, but for the surround community as well. I believe that the amendments proposed by the Building and Construction Trades Council of Contra Costa County would require, after a three-year phase-in period, that workers be enrolled or be a graduate of a State approved apprenticeship program. It is my understanding that these training programs have been approved for both the union and non-union sectors. Workers would also qualify for a certificate of equivalent training if they have completed such a program. I believe that these recommendations provide the flexibility that anyone who wants to complete the training will have the ability to do so. I believe that the use of workers trained to the highest standards possible will contribute positively to the effort to improve refinery safety. Our collective efforts must continue to be focused on assuring the protection of our communities and our workers. I understand that you are conducting a thorough review of the County's ISO in conjunction with the Hazardous Materials Commission and, as part of that effort, I would urge you to consider adoption of the safety improvements recommended. Sincerely, Joseph Canciamilla Assemblymember, I Vh District cc: Leslie Stewart,Hazardous Materials Commission JC:kmg E-mail:assemblymember.canciamillaCassembiy.ca.gov Website:http://democrats.assembly,ca.gov/members/ai 1/ ELLEN o.TAUSCHER 1122 LONGWORTH HOUSE OFFICE BUILDING WASHINGTON,OC 206IS 70TH DISTRICT,CALIFORNIA TELEPHONE 12021225-IBRD PAX{202)225-611114 COMMITTEE ON TRANSPORTATION AND INPRAs7RUCTURE � � � } iB01 N,CAUKORNU18iYD. SUBCOMMITTEE ON AVIATIONgra of the Sn'tb L SUITE 103 WALNUT CREEK,CA 54686 SUBCOMMITTEE ON ^per o $ � � a TELEPHONE 1932.412-BBBE HIGHWAYS AND TRANSIT ''*^pY Ly i �y r FAX{8261 B32-SrSE COMMITTEE ON ARMED SERVICES 0�fag on, -MC 20515-0510 r00 CIVIC PLAZA SUBCOMMITTEE ON MILITARY PROCUREMENT SUITE 342 DUBLIN.CA 84565 SUBCOMMITTEE ON MILITARY PERSONNEL TELEPHONE 425Y E29-MI3 SPECIAL OVERSIGHT PANEL ON DEPARTMENT OF ENERGY REORGANIZATION 420 W.3RD ST. ANTIOCH,CA 54509 TELEPHONE 18251757-7107 July 11, 2002 WebA4drr44:www.noew.9cw1Bu4cn.r John M. Gioia, Chair Contra Costa Board of Supervisors County Administration Building 651 Pine Street,Room 106 Martinez, CA 94553 Dear Chairman Gioia: I am writing regarding your upcoming consideration of proposals to improve the safety of local chemical plants and refineries in Contra Costa County. It is my understanding that the Building and Construction Trades Council of Contra Costa County has proposed a training amendment to the Industrial Safety Ordinance (ISO). While the current ISO contains impressive safety provisions, enhancements to the ordinance should be considered in order to improve protections for our county's citizens, as well as for industry employees. In the interest of public safety,I encourage you to consider ongoing training for chemical plant and refinery employees who deal with hazardous materials. I appreciate your attention to this matter of concern for the residents of Contra Costa County. Sincerely, Ellen O. Tau cher Member of Congress PRINTED ON RECYCLED PAPER tl w. UCI CONSTRUCTION, INC. GENERAL CONTRACTOR CA LIC.399824 NV LIC.A.-41994 OR LIC.143249 ■ EC 6a November 5, 2002 NOV 5 2002 CLERK BOARD OF SUPERVISORS Board of Supervisors CONTRACOSTACO. Contra Costa County 651 Pine Street Martinez, CA 94553 RE: Industrial Safety Ordinance Proposed Contractor Training Amendments County File No. CP02-30 Dear Board of Supervisors: We have reviewed the proposed amendments to the Industrial Safety Ordinance, and we have just recently received copies of the changes to the amendment circulated by the County on Friday, November 1, 2002. We request that the November 5, 2002 hearing be continued for three weeks to allow all interested parties additional time to review, evaluate and comment on the most recent changes. We oppose the proposed amendments related to contractor training and urge the Board to follow the recommendation of the County's Public and Environmental Health Advisory Board and vote against adoption of the proposed amendment. We also incorporate by reference the comments submitted throughout these proceedings by the California Contractors Alliance and the Citizens for a Safer Environment. If adopted, the proposed amendment could result in decreased safety at refineries as well an increased hazard of environmental, safety, and health-related impacts. The proposed amendment will foreclose the ability of many of our workers to work at refineries. These are experienced workers who have a long and safe history of working at the refineries, Now, because they were not trained in a CAC-approved program, or because they are not from Contra Costa, Alameda or Solano counties, the County is making it nearly impossible for these skilled and trained workers to work at the refineries. Further,these qualified workers must schedule their work well ahead of time, and frequently are not available on short notice. NORTHERN CALIFORNIA CENTRAL CALIFORNIA P.O.BOX 5547 P.O.BOX 533 CONCORD,CALIFORNIA 94524-0547 BAKERSFIELD,CALIFORNIA 93302-0533 (925)370-9808 (661)587-0192 FAX(925)370-9876 FAX(661)587-0198 Additionally, this organization currently has contracts with two refineries in Contra Costa County for current and future maintenance, turn-around work. 1. Shell DCU Charge Line PSV Project, 2. Shell Martinez Mid-Grade Blender Project, 3. Tesoro ARU Turnaround. Due to the proposed amendment and the new restriction contained in it, those contracts are unlikely to go forward and the refineries could not honor our agreements. The proposed amendment would impair our contracts and we will lose substantial business and profits, and we may be forced to lay-off workers and even shut down our business. We object to the proposed contractor training amendment and again ask you to vote against its adoption. Sincerely, 3 t C7� w om Weatherford UCI Construction, Inc. President ICOR r DELTA OONS"T RU07ORS NOV 9101NDUSTRLAL wAr•P.0.60X 637 5 6EMCIA,CAUFOHNIA 94510-0937 cLK& (707)747-7500•FAX(707)745-5619 CPS NrgA sv,� November 5, 2002 Board of Supervisors Contra Costa County 051 Pine Street Martinez, CA 94553 RE: Industrial Safety ordinance Proposed Contractor Training Amendments County File No. CP02-30 Dear Board of Supervisors: We have reviewed the proposed amendments to the Industrial Safety ordinance, and we have just recently received copies of the changes to the amendment circulated by the County on Friday, November 1, 2002. We request that the November 5, 2002 hearing be continued for three weeks to allows all interested parties additional time to review, evaluate and comment on the most recent changes. We oppose the proposed amendments related to contractor training and urge the Board to follow the recommendation of the County's Public and Environmental Health Advisory Board and vote against adoption of the proposed amendment. We also incorporate by reference the comments submitted throughout these proceedings by the California Contractors Alliance and the Citizens for a Safer Environment. If adopted, the proposed amendment could result in decreased safety at refineries as well an increased hazard of environmental, safety, and health- related Impacts. The proposed amendment will foreclose the ability of many of our workers to work at refineries. These are experienced workers who have a long and safe history of working at the refineries. Now, because they were not trained in a CAC-approved program, or because they are not from Contra Costa, Alameda or Solano counties, the County is making it nearly impossible for these skilled and trained workers to work at the refineries. Further, these qualified workers must schedule their work well ahead of time, and frequently not available on short notice. u Contractors for Industry Since 1974 www.coreydelta.com . email.infofcoreydelta.com 11/04/2002 MON 12.20 [TX/RX NO 84201 0 002 mow 1 s e DELTA Additionally, this organization currently has contracts with several refineries in Contra Costa County for current and future maintenance, turn-around and other work at these refineries, including but not limited to the Shell Oil Products, U.S. Martinez Refining Complex and the Tesoro Golden Eagle Refinery. Due to the proposed amendment and the new restriction contained in it, those contracts are unlikely to go forward and the refineries could not honor our agreements. The proposed amendment would impair our contracts and we will lase substantial business and profits, and we may be forced to lay-off workers and even shut down our business. We object to the proposed contractor training amendment and again ask you to vote against its adoption. Sincerely, Charles A. Fletcher Vice President Corey Delta, Inc. 11/04/2002 MON 12.20 CTX/RX NO 84201 Q003 NW -05' 02 (TUE) 11 :03 r. uut RECEIVED 4650 East Seeond Street, Suite E PEN N Benicia,+C d fornin 94510_10009 NOV 5 2002 (707)74th-4888 I MCD FAX(707) 746-4898 CLERKCBOARDONTRA OF M ISt}�tS Electrical • Pule fine w Engineering • Communication • Instrumentation + U.L. Listed Panel Shop November 5, 2002 Board of Supervisors Contra Costa County 651 Pine Strut .Martinez, CA 44553 RE: industrial Safety Ordinance Proposed Contractor Training Amendments County File No. CP02-30 Dear Board of Supervisors: We have reviewed the proposed atneadments to the Industrial Safety Ordinance, and we have just recently received copies orthe changes to the amendment circulated by the County on Friday. November 1, 2002. We request that.the November 5, 2002 hearing be continued for three weeks to allows all interested parties additional time to review, evaluate and comment on the most recent changes. We appose the proposed amendments related to contractor training and urge the Board to follow the recommendation of the County's Public and Environmental Health Advisory Board and vote against adoption of the proposed amendment. We also incorporate by reference the comments submitted throughout these proceedings by the California Contractors Alliance and the Citizens for a Scar Environment. If adapted,the proposed amendment could result in decreased safety at refineries as well an increased Hazard ofcnvironmental, safety,and health-related impacts. The proposed amendment will foreclose the ability of many of our workers to work at ref erics. These arc experienced workers who have a. long and safe history of working at the refineries. Now,because they were not trained in a CAC-approved program, or because they are not from Contra Costa,Alameda.or Solano counties, the County is making it nearly impossible for these skilled and trained workers to work at the 11/05/2002 TUE 10:40 [TX/RX NO 84311 Q002 NOV. -05' 02 (TUE) 11 :03 refineries. Further,these qualified workers must schedule their work well ahead of time, and frequently are not available on short notice. Additionally. this organization currently has contracts with several refineries in Contra Costa County for current and future maintenance, tarn-around and other work at the refineries. Due to the proposed amendment and the new restriction contained in it, those contracts are unlikely to go forward and the refneries could not honor our agreements. The proposed amendment would impair our contracts and we will lose substantial business and profits, and we may be forced to lay-ofTworkers and even shut down our business. We object to the proposed contractor training amendment and again ask you to vote against its adoption. Sincerely. Norman K. Halllch CFO—Aspen Ti meo, Ina 11/05/2002 TUE 10:00 [TX/RX NO 84311 003 GEORGE MILLER OIFMICT OFFICES: 7TH DISTNICT,CAUFORNIA 1333 WILLow FAss ROAD Surm 203 2205 RAYOURN HOU39 OFMCP BUILDING CONComo,CA 94520 WASmINGTON,OC 206154507 �y �y j� �+y (} j yy*r �` ��r (325)602-1$BO (202)225-2095 Conar �iJ Vf the Y�4+�n, eb tatr www.hous*.gov/29orgamillor 9220 ume 2 1 Sarre Z81 DANIEL.WEISS ** �y}� �y #��y�yy� t ¢tr{��y�gt Ragmor o,CA 34805 CH9F OF STAFF ous;e of epreantatibe (510)x524500 COMMITTEE ON EDUCAMON20515-0507 y 1410 G¢oRGIA STurr AND THE WORKFORCE t obting'ton, ;9C 20515-050�9 VAUAJO'CA 04590 saNIOR OTMoCRAT (707)541E-1888 COMMITTEE ON RESOURCES REC D TTY t202)225-1904 NOV 5 2002 CL RK SOARL1 pp May 23, 2002 CorvrRA CO A CovrsoRs Leslie Stewart, Chairperson Hazardous Materials Commission of Contra Costa County 20 Allen Street Martinez, CA 94553 Fax: 370-5098 Dear Ms. Stewart: I am aware that the Building and Construction'Trades Council of Contra Costa County proposed a training amendment to the Industrial Safety Ordinance. I am writing to express my strongest support for steps leading to enhanced worker training at industrial facilities in our communities. This proposal is a very good step in this direction. As we have seen,proper training of industrial workers in our community is a life and death issue. I believe that this amendment will enhance safety and enhance the productivity of workers and the productivity of industries in our community. I urge you to take necessary steps to ensure worker and community safety. Thank you very much for your consideration of these views. ly' � George Mille Member of Congress cc: Greg Feere,President,Building and Trades Council Contra costa County ►RINTYO ON RECYCL90►A►ER DISTRICT Or?rICES 557ATE CAPITOL =I CONCORD BOULEVARD ROOM 2069 CONCORD,CA 04519 SACRAMENTO.CA 95914 r ES ($35)802.6593 786(9181 441.2527 �a T T-far .�i tate rA 59251 6O2-6598 FAX 19151 648•=537 .1 •4.L� Gl GL+'� JOINT GOVEf4NMBN7 CIENTBp 4.70 WEST 3KO STREET SENATOR ANTIOCI-i•CA 94809 TSL 1928)754-14G1 STANDING COMMITTEES T0M TORL,4KSON FAX IQ2s)77e•°J 1'/a LOCAL GOVERNMENT CHAIR SEVENTH SENATORIAL. DISTRICT [DUBLIN 3ATg6LITG OFFICE 100 CIVIC PLAZA hia.rcy COMMITTiRi ISUGLIN,CA 94568 TgL aAY AREA INFRASTRUCTURE J FAX 19251 560.63 00 FAX 1323191 329-73 t 9 a May 23,2002 Leslie Stewart,Chair,and Committee Members Contra Costa County Hazardous Materials Commission 20 Allen Street Martinez, CA 94553 .Dear Chairwoman Stewart and Commission Members. I support the training amendments to the Industrial Safety Ordinance that have been proposed by the Building and Construction Trades Council of Contra Costa County. There is no question that the adequate training of workers improves safety. The County is considering many proposals to improve safety at the refineries.I believe that improved training requirements will contribute to improving safety. The current provisions of the County's ISO require that each contractor assure each employee is adequately trained. However,there are no training standards in the ordnance and no requirements for even minimum training. As I understand it,the proposed amendments would require,after a three-year phase-in period, at workers be enrolled in or be a graduate of apprendoeship programs approved by the State of Ca ifomia. The amendments would additionally require journey Ievel workers to receive an additional 20 hpurs of training per year. I understand these training programs have been approved for both the union and non-union sectcprs, in addition,the ordinance would allow workers to qualify if they had completed a program for a cgrtifcate of equivalent training. This provision is a further assurance that everyone who wants to complete the training will have an opportunity to do so, Once again,I believe the use of workers trained in state-approved programs will contribute positively to the overall effort to improve safety. I urge the Hazardous Materials Commission to recommeno adoption of these important amendments for consideration by the Board of Supervisors. Sincerely, 407^`1 07;;J,*w6,w,,rov Tom Torlakson cc; Supervisor John Gioia, Chair,Board of Supervisors Supervisor Glover Supervisor DeSauinier Supervisor Uilkama Supervisor Gerber o Dion Louise A ro n e rASSEMBLYWOMAN,FOURTEENTH DISTRICT CHAIR,ASSEMBLY HUMAN SERVICES CALIFORNIA LEGISLATURE-STATE CAPITOL SACRAMENTO,CA 95814 (918)319.2014 FAX(915)3192114 COMMITTEES: BUDGET JUDICIARY REVENUE AND TAXATION BUDGET SUBCOMMITTEE ON HEALTH AND HUMAN SERVICES(SUB 1) SELECT COMMITTEES: COASTAL PROTECTION GUN VIOLENCE May 23, 2002 MENTAL HEALTH JOINT TASK FORCE ON WORKFORCE INVESTMENT To Members of the Contra Costa County Hazardous Materials Commission: I am writing to support the training amendments to the Industrial Safety Ordinance that have been approved by the Building and Construction Trades Council of Contra Costa County. There is no question that the training of workers improves safety. There are many things the County should do to improve safety at the refineries. Training requirements seem like a minimum step. The current provisions of the County's ISO provide that each contractor should assure that each employee is adequately trained. There are no training standards in the ordinance and no requirements for even minimum training. The proposed amendments would require, after a 3-year phase-in period that workers be enrolled in or graduates of apprenticeships programs approved by the State of California. The amendments would additionally require journey level workers to have an additional 20 hours of training per year. The reliance on programs already in existence that must meet publicly established standards and that are subject to audit by a public agency is a definite improvement over the current system. We understand that these training programs have been approved for both the union and the non-union sectors, so the use of approved programs seems fair. In addition, the ordinance would allow workers to qualify if they had completed a program to obtain a certificate of equivalent training. This provision is a further assurance that everyone who wants to complete the training will have an opportunity to do so. These amendments do not seem to impose an unfair burden on the industry. Not only do the amendments have a 3-year phase-in period, but also they also only require the industry contractors make an effort for 2 business days to hire trained workers. If those workers cannot be located, the industry may obtain workers from any source. The amendments can be fairly described as nothing more than requiring the industry to give a first preference to trained workers. There is no reason to think that such a step will harm the industry. On the other hand, the use of trained workers will surely contribute to an overall effort to improve safety. DISTRICT OFFICE:918 PARKER,BERKELEY,CA 94710+(510)540,3660.FAX(510)540.3855 DISTRICT OFRCE:101 BROADWAY,RICHMOND,CA 94804•(510)234-0211-FAX(510)234-0213 I urge the Hazardous Materials Commission to recommend adoption of these important amendments. Thanks for your consideration. Si ely, Dion S. Aroner DSAlbrs STATE CAPITOL comma7EES P.O.BOX 942849 � � CHAIR,WATER,PARKS&WILDLIFE SACRAMENTO,CA 94249 0011 ARTS,ENTERTAINMEK SPORTS, (916)319-2011 r � � , �„ TOURISM,AINTERNET MEDIA FAX(916)319-2111 . .4� C,�..:_l. BUDGET T GOVERNMENTAL ORGANIZATION DISTRICT OFFICE y'a. UTILITIES AND COMMERCE 8 5 E TINDI CA TRE ; " SUB COMMITTEES R w ` BUDGETSUBCOMMETTEE#3,RESDURDES (925)372.7990 FAX(9z5)37z a TEES JOSEPH CANCIAMILLA SCAUFORONIAWINE ASSEMBLYMEMBER,ELEVENTH DISTRICT LOW PERFORMING SCHOOLS PROTECTION OF INLAND WATERWAYS May.24, 2002 TRANSPORTATION CONGESTION RELIEF Supervisor John Gioia, Chair Contra Costa County Board of Supervisors 651 fine Street Martinez, CA 94553 Dear Supervisor Gioia: As you consider amendments to the Industrial Safety Ordinance I would like to express my support for the effort to improve training and safety for Contra Costa County workers and communities, particularly at our local refineries. I am aware that the Board of Supervisors is currently considering several proposals to improve safety at facilities in the county. Current provisions of the County's Industrial Safety Ordinance do not contain any established training standards or minimum training requirements. I believe that the improved training requirements suggested will help to achieve the goal of a safer environment not only for our workers, but for the surround community as well. I believe that the amendments proposed by the Building and Construction Trades Council of Contra Costa County would require, after a three-year phase-in period, that workers be enrolled or be a graduate of a State approved apprenticeship program. It is my understanding that these training programs have been approved for both the union and non-union sectors. Workers would also qualify for a certificate of equivalent training if they have completed such a program. I believe that these recommendations provide the flexibility that anyone who wants to complete the training will have the ability to do so. I believe that the use of workers trained to the highest standards possible will contribute positively to the effort to improve refinery safety. Our collective efforts must continue to be focused on assuring the protection of our communities and our workers. I understand that you are conducting a thorough review of the County's ISO in conjunction with the Hazardous Materials Commission and, as part of that effort, I would urge you to consider adoption of the safety improvements recommended. Sincerely, Joseph Canciamilla Assemblymember, I Vh District cc: Leslie Stewart,Hazardous Materials Commission JC:kmg E-mail:assemblymember.canciamiila*assembly.ca.gov '" Website:http://damocrats.assambly,ca.gov/members/ai i/ ELLEN 0.TALISCHER 1122 LONGWOM7H HOUSE OFFICE BUILDING WASHINGTON, 10TH DISTRICT,CALIFORNIA TELEPHONE(202 )225-IBEO FAX(262)2266914 COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE �Conre,5� of tbe i 4niteb *tater SUITE teal N.CAU E 103 BLVD. SUBCOMMITTEE ON AVIATION aj g WALNUT CREEK, CA 94696 SUBCOMMITTEE N age of ]iepregetttatibeg TELEPHONEFAX )932-61.8898 HIGHWAYS AND TRANSIT �1 fi FAX 1925)932-6168 COMMITTEE ON ARMED SERVICES � ,y}� � 'flb 2{75t5"'OSIO 100 CIVIC PLAZA SUBCOMMITTEE ON MILITARY PROCUR€MENT 935�� 7� SUITE DUBLIN.CA 9 5 4559 SUBCOMMITTEE ON MILITARY PERSONNEL TELEPHONE 1925)92$4913 SPECIAL OVERSIGHT PANEL ON DEPARTMENT OF ENERGY REORGANIZATION 420 W.3RD ST. ANTIOCH,CA 94669 TELEPHONE(925)757-7197 July 11, 2002 Web Addree..-.houee.96WWuwher John M. Gioia, Chair Contra Costa Board of Supervisors County Administration Building 651 Pine Street, Room 106 Martinez, CA 94553 Dear Chairman Gioia: I am writing regarding your upcoming consideration of proposals to improve the safety of local chemical plants and refineries in Contra Costa County. It is my understanding that the Building and Construction Trades Council of Contra Costa County has proposed a training amendment to the Industrial Safety Ordinance (ISO). While the current ISO contains impressive safety provisions, enhancements to the ordinance should be considered in order to improve protections for our county's citizens, as well as for industry employees. In the interest of public safety, I encourage you to consider ongoing training for chemical plant and refinery employees who deal with hazardous materials. I appreciate your attention to this matter of concern for the residents of Contra Costa County. Sincerely, Ellen O. Ta cher Member of Congress PRINTED ON RECYCLED PAPER Associated Builders and Contractors Golden Cate Chapter TRAINING TRUST ASSOCIATED BUILDERS AND CONTRACTORS,INC. GOLDEN GATE CHAPTER November 5,2002 RECEIVED To: Contra Costa Board of Supervisors - From: Anne Quick 2002 Apprenticeship Director ABC Golden Gate Chapter CLERK{8 c Rj)OF SUPFr�S' 11875 Dublin Blvd. Ste.C-258 CONTRA`CIaTA�+:a Dublin,CA 94568 (925)829-9230 Fax(925)829-5877 Re: County Ordinance Code Chapter 450-8(Industrial Safety Ordinance)-Revision "Equivalency Testing" At the October 8, 2002 Board of Supervisors Meeting, Supervisor DeSauliner and Gioia charged the non- signatory contractors to submit their proposed Journeyperson Equivalency Testing Program for refinery workers who are not enrolled in, or did not graduate from, an apprenticeship program approved by the California Apprenticeship Council. California Labor Code Title 8,Article 2,Section 205 defines `journeyman"as a person who has either(1) completed an accredited apprenticeship in his/her craft or (2) who has completed the equivalent of an apprenticeship in length and content of work experience and all other requirements in the craft which has workers classified as journeyman in the apprenticeable occupation. "Apprenticeship program"means a comprehensive plan containing, among other things, apprenticeship program standards, committee rules and regulations,related and supplemental instruction course outlines and policy statements for the effective administration of that apprenticeable occupation. Since your amendments references terms as having the same meaning as those terms do in the California Labor Code — note that the apprenticeship program definition does NOT state that apprentices must have graduated for the most recent five years in order to be an approved apprenticeship program. I submit for your review,craft skills assessment equivalency tests,with the curricula and tests developed by National Center for Construction Education and Research(NCCER) in the following crafts: Boilermaker, Boilermaker Technician, Commercial Carpentry, Industrial Carpentry, Commercial Electrical, Industrial Electrical, Industrial Insulating, Industrial Ironworking, Industrial Maintenance Electrical, Industrial Maintenance Mechanic, Industrial Pipef-itting, Industrial Painting, Instrument Fitting, Instrument Technician,Millwright and Scaffold Building. NCCER curricula and tests in electrical, carpentry, plumbing,painting, drywall, sheet metal, construction craft laborer, HVAC technician, and pipefitting have been submitted and approved by the California Apprenticeship Council as part of apprenticeship program standards. All NCCER curricula meet minimum apprenticeship criteria. A catalog of all NCCER curricula that meets minimum apprenticeship program standards is included here to be presented into the record along with a sample of the curricula and tests for the first three years of an electrical program. A presentation of the full five year electrical program was shown last week to Supervisor DeSauliner at his Concord office. 11875 Dublin Boulevard, Suite C-258 • Dublin, California 94568-2842 Tel (925) 829-9230 + Fax (925) 829-5877 • www.abc.org/gate In your proposed amendment you reference that equivalency tests must be "approved by the CAC". The California Apprenticeship Council is charged with establishing standards for minimum wages, maximum hours and working conditions for apprentice agreements. Established in 1939 by the Shelley-Maloney Apprentice Labor Standards Act, the California Apprenticeship Council sets policy for the Division of Apprenticeship Standards (DAS). As such, the CAC is able to approve curricula and tests as part of an approved apprenticeship program. I am unaware of them approving only a test, separate and apart from inclusion in an apprenticeship program set of standards. Now,the Division of Apprenticeship Standards(DAS),per Assembly Bill 931 was directed to establish and validate minimum standards for the competency and training of electricians through a system of testing and certification. The bill was signed in 1999 and the testing process has not yet even begun to accept applications to schedule test dates. The process to even get a validated test took more than two years. The California Apprenticeship Council(with the DAS doing the actual work) is allowed ug to three years to approve any apprenticeship program set of standards. They are currently back logged with more than 1200 unprocessed Apprentice Agreements, Standard Revisions and incomplete program audits. So, mandating CAC approval on equivalency tests as part of the ordinance seems like an unrealistic requirement. In addition, the DAS and CAC are involved in litigation from several non-union approved apprenticeship programs for biased treatment(Independent Roofers,Plumbing and Heating Contractors and Air Conditioning Trades Association), as well as having the Department of Labor beginning proceedings for de-recognition of the California Apprenticeship Council and having California perhaps become a Federally Approved Apprenticeship State. DAS Chief,Henry Nunn,will be the first person to inform you that that due to budget cuts and constraints the division statewide is understaffed and behind on their work loads. The California Code of Regulations, Article 4, Section 261 (a) does allow Bona fide state training programs for other than apprenticeable occupations may be established through the adoption of written training standards by the interested parties,approved the Division of Apprenticeship Standards.Again,that is additional workload that the department is unable to handle. That all being said,I ask you, WHO is charged with being the SME's (Subject Matter Experts)who will validate that the tests submitted here are"equivalent"? If you have any further questions please don't hesitate to contact me. ANDERSEN, BONNIFIELD & COTTLE ATTORNEYS AT LAW TELEPHONE:(925)802-1400 ONE CORPORATE CENTRE FACSIMILE:(925)825-0145 1320 WILLOW PASS ROAD-SUITE 500 CONCORD,CALIFORNIA 94520-5244 October 28, 2002 IV ED VIA HAND DELIVERY OCT 2 8 2002 Mr. Michael ,Planner CLERK BOARD OF SUPERVIS fps Contra Co County Community Development Department coNrR�COSTA c�. 651 Pi Street, North Wing, 41 Floor M nez, CA 94553 RE: Revised Initial Study and Proposed Negative Declaration Industrial Safety Ordinance County File No. CP02-30 Dear Mr. Henn: This office represents the Citizens for a Safer Environment, and the purpose of this letter is to address concerns and errors with the revised Initial Study (dated October 7, 2002)and proposed negative declaration for the proposed amendments to Ordinance 98-48, the Industrial Safety Ordinance. Attached hereto and incorporated herein by reference is a letter dated October 25, 2002 from David Golick,planning consultant,to the Contra Costa County Community Development Department. Mr. Golick, a consulting planner with over 25 years' experience as a planner, addresses the inadequacies of the revised Initial Study. 1. Prior Comments Incorporated Our firm initially responded to the proposed amendment and first Initial Study by a hand delivered letter, with two attached declarations, to the County on April 16, 2002. That correspondence is attached hereto and incorporated herein by reference, and those comments are incorporated as comments on the revised Initial Study and supplement the comments contained in this letter. 2 The Initial Study and Proposed Negative Declaration are Deficient. Under standard and accepted practice, as described in the State CEQA Guidelines, a lead agency, in this case Contra Costa County, undertakes an Initial Study to determine the appropriate environmental document for a proposed project. The Initial Study may conclude that the appropriate environmental document is a negative declaration, a mitigated negative declaration, i-k-sb •- N " ---"', w-r C1�Cr CDS Michael Henn October 28, 2002 Page 2 or an environmental impact report. The Initial Study and proposed conclusions are subject to public review and comment as described in CEQA. The lead agency must take all substantive comments received during the public review period under consideration before acting on the proposed project and its related environmental document. a. Requirements for Adequacy of Initial Study and Negative Declaration There is no doubt about the intent,purpose, and contents of an Initial Study. They are well defined by statute, the CEQA Guidelines, and over thirty years of CEQA related litigation A lead agency can approve the negative declaration only if it finds no substantial evidence that the project will have a significant effect on the environment. Pub Res Code §21080(c); 14 Cal Code Regs §15074(b). If there is substantial evidence, in light of the whole record before a lead agency, that a project may have a significant effect on the environment,the lead agency shall prepare a draft EIR. 14 Cal Code Regs §15064(f)(1) (emphasis added). If the lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may be presented with other substantial evidence that the project will not have a significant effect. No 4i1. 1'nc. v. City a Los Angeles (1974) 13 Cal.3d 68. In reviewing negative declarations, interested parties should focus on the proposed finding that the project will not have a significant impact, and if they believe that the project will have a significant environmental effect,they should. (1)Identify the specific effect; (2)Explain why the reviewer believes that the effect would occur; and(3) Explain why the effect would be significant. 14 Cal Code Regs §15204(b)(1)-(3). Argument, speculation, unsubstantiated opinion or narrative,or evidence that is clearly inaccurate or erroneous, or evidence that is not credible, shall not constitute substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. 14 Cal Code Regs §15064((f)(5). We believe it is important for the County to note that the purpose of the Initial Study is to assess whether the proposed project could have a significant impact on the environment. A lead agency cannot merely conduct superficial analysis of project's potential impacts, but a legally defensible negative declaration mast provide some explanation of its environmental conclusions. Citizens Assn for Sensible.Development v. CounU ofnya(1985) 172 Cal.App.3d 151, 171, 217 Cal.Rptr. 893, 906 (the Initial Study checklist must be supported by evidence in the record and the agency should not be allowed to hide behind its own failure to gather relevant data). The agency has the burden of investigating potential impacts and the record of its action must Michael Henn October 28, 2002 Page 3 demonstrate, and not assume, that significant impacts will not occur. Sundstrom v. County of Mendocino(1988)202 Cal.App.3d 296, 248 Cal.Rptr. 352. Conclusions and checkmarks on an Initial Study checklist, such as the checklist used by Contra Costa County for the proposed amendments to the Industrial Safety Ordinance, must be based on evidence in the record. Checkmarks must be explained, if only briefly,to provide a basis for conclusions. See Leonoff v Monterey County Board of Supervisors(1990)222 Cal.App.3d 1337. In Sundstrom, the court stated that the lead agency must provide the public with information it used to base its conclusions, and an environmental checklist unsupported by facts and data does not constitute an adequate Initial Study. Sundstrom, 202 Cal.App.3d 296 (stating that mechanical application of the "fair argument" rule would defeat the purpose of CEQA where the local agency has failed to undertake an adequate Initial Study.) In Antioch v. Pittsbur (1986) 187 Cal.App. 3d 1325, the court cited City ofCarmel-by-the-Sea v. Board of Supervisors o Monterey Coun 183 Cal.App.3d 229 regarding the need to consider in the Initial Study all activities and impacts involved in planning, implementation, and operation of a project. Section 15063(c)(1) of the Guidelines states that one of the purposes of an Initial Study is to, "provide the Lead Agency with information to use as the basis for deciding whether to prepare an EIR or Negative Declaration". Section 15063(d)(3)of the Guidelines further describes the purposes of an Initial Study by stating, "An Initial Study shall contain in brief form, ... an identification of environmental effects by use of a checklist,matrix, or other method, provided that entries on a checklist or other form are briefly explained to indicate that there is some evidence to support the entries. The brief explanation may be either through a narrative or a reference to another information source such as an attached map,photographs, or an earlier EIR or Negative Declaration. A reference to another document should include,where appropriate, a citation to the page or pages where the information is found." CEQA places the burden of environmental investigation on the government rather than the public, and if the agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record and deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences. Sundstrom v. County ofMendocino (1988)202 Cal.App.3d 296, 248 Cal.Rptr. 352, 360; see Chri.stward 1�finistry v. Superior Court(1986) 184 Cal.App.3d 180, 197, 228 Cal.Rptr. 868 (court found negative declaration and Initial Study deficient, stating "the City's assertion it could find no `fair argument' there were any potentially significant impacts rests, in part, in its failure to undertake an adequate environmental analysis"). Michael Fenn October 28, 2002 Page 4 b. Unclear whether first Initial Study is still effective The County prepared an Initial Study on March 25, 2002. Following numerous comments submitted by this office,County staff claimed that the first Initial Study was satisfactory. However, a new Initial Study, dated October 7, 2002, has now been presented. This new Initial Study makes no reference to the prior Initial Study, there is no explanation why a new Initial Study was prepared, and there is no explanation as to the effect on the first Initial Study. c. Failure of County's Initial Study to SupRort Negative Declaration It is clear that the Initial Study prepared by Contra Costa County for the proposed amendment to the ISO does not meet the tests and standards established by statute,the State CEQA Guidelines, and case law. Contra Costa County did not cite adequate or proper sources to support the checkmarked conclusions, and the cited sources fail to support the conlcusions. The lack of adequate, complete or appropriate studies, analyses, cited sources of information or any other substantial evidence in the Initial Study for the proposed amendments to the ISO means the study is flawed. In fact, Section 15070 of the State CEQA Guidelines states, "A public agency shall prepare or have prepared a proposed negative declaration or mitigated negative declaration for a project subject to CEQA when ... the Initial Study shows there is no substantial evidence, in light of the whole record before the agency,that the project may have a substantial effect on the environment..." In the subject case, Contra Costa County has provided no substantial evidence to support its conclusions. Section 15002(k)(2) of the Guidelines states that the purpose of the Initial Study is, "to determine whether the project may have a significant effect on the environment". Conclusions of the Initial Study must be based on substantial evidence in the public record. Section 15063(a)(1) of the Guidelines states, "All phases of project planning, implementation, and operation must be considered in the Initial Study of the project". The Discussion under Section 15063 of the Guidelines states, "The Initial Study is necessary in order to provide the factual and analytical basis for a Negative Declaration or to focus an EIR on significant effects of a project...This section also clarifies that the individual conclusions reached by an Initial Study must be based on some evidence". It is the duty and responsibility of the lead agency to provide evidence that a negative declaration or EIR is the appropriate environmental document. It is not the obligation of commenters to "present—facts or hard evidence...to show that the [proposed] amendments may cause" a significant environmental impact. Commenters may provide "facts or hard evidence" in response to data,reports, and other sources used by the lead agency in the Initial Study checklist. Michael Henn October 28,2002 Page 5 However, it is a primary responsibility of the lead agency to provide source data and explanations of conclusions reached in the Initial Study checklist. The responsibility of commenters is to respond to(comment on)the studies and conclusions contained in the Initial Study. The responsibility of commenters is not to pre-empt the role of lead agencies,which are delegated by State law to conduct research and draw conclusions based on that research. It is the responsibility of Contra Costa County to provide substantial evidence to form the basis for their conclusions. Rather than even coming close to meeting the threshold requirements for a legally defensible negative declaration, the County refused to conduct any studies and refused to cite to adequate evidence in support of its conclusions. There is no evidence that there is sufficient labor to meet the requirements of the refineries, especially during turnarounds and shutdowns. There is no evidence that,with adoption of the proposed amendment, there will be sufficient labor to meet refinery needs. There is no evidence that labor will be available during emergencies, strikes, shutdowns,or turnarounds. There is no evidence.of what training in a CAC-approved program entails, or how that makes a worker safer at a refinery. In fact, County staff, boards, commissions, and committees have repeatedly asserted and found that no accidents were caused by contractor worker error and that there is no connection between training and CAC-approved programs and improved safety/training.' The Initial Study ignores the County's own report (attached) showing that accidents at refineries are caused by refinery employees and not by contractors. The Initial Study ignores the substance of the cited sources,which state that: on average, employees of non-union contractors receive more safety training than union contractors; closely supervised contract employees with more than one year at the facility have ' See comments by Randy Sawyer,March 20,2002 meeting of Contra Costa County Hazardous Materials Commission's Planning and Policy Committee; see finding of Public and Environmental Health Advisory Board(May 2,2002,May 23, 2002)that"no compelling evidence that contract workers trained by programs approved by the California Apprenticeship Council had better safety records than contract workers trained by other programs," see finding of Hazardous Materials Commission's Planning and Policy Committee that there is a"lack of evidence that contract workers trained in programs approved by the California Apprenticeship Council had better safety records than those trained elsewhere." 2 Kochan, Smith,et al.,Human Resource Strategies and Contingent Workers: The Case of Safety and Health in the Petrochemical Industry,Human Resource Management,Vol.33, 1994,55-76. Study states that on average union contract workers receive 6 hours of training while non-union contract workers receive 10 hours of training. We note that this study is not specific to Contra Costa refineries, and that no study has been performed regarding safety or skills training of workers at Contra Costa refineries. Michael Henn October 28, 2002 Page 6 lower accident rates than refinery employees'; neither safety training nor experience with the employer has any statistically significant impact on contract personnel accident rates4; the way to make refineries safer is to have the refineries supervise all workers,both refinery and contractor employee$; and, the stakeholders(managers, workers,contractors, labor representatives) should be brought together into the process to improve safety.' None of the sources cited in the Initial Study claim or conclude that the way to make a refinery safer is to train them all through a CAC-approved program or to require them to sign an apprenticeship agreement with a CAC-approved program. Mone of the cited sources study or claim that contractors at Contra Costa refineries are safer if they employ workers trained in CAC- approved programs or if they employ workers trained in other manners. Further, none of the sources cited in the Initial Study purports to be a study of refinery safety and practices in Contra Costa County; rather,the cited sources are a generalized look at refineries in Texas and elsewhere in the country in 1990-1994. In fact,the one study dealing with Contra Costa refineries explains that of the most recent 27 major incidents,not one was caused by contract James B.Rebitzer,Job Safety and Contract Workers in the Petrochemical Industry,Industrial Relations,Vol.34, 1995,40-57,at 53. Kochan, Smith,et al.,Human Resource Strategies and Contingent Workers: The Case of Safety and Health in the Petrochemical Industry,Human Resource Management,Vol.33, 1994, 55-76; John Gray Institute,Managing Workplace Safety and Health: The Case of Contract Labor in the ZITS Petrochemical Industry,July 1991. S Kochan, Wells&Smith, Consequences of a Failed IR System: Contract Workers in the Petrochemical Industry, Sloan Management Review, Summer 1992,79-89,at 87;John Gray Institute,Managing Workplace Safety and Health: The Case of Contract Labor in the U S.Petrochemical Industry,July 1991. Kochan,Smith,et al.,Human Resource Strategies and Contingent Workers: The Case of Safety and Health in the Petrochemical Industry,Human Resource Management,Vol.33, 1994,55-76,at 71;James B.Rebitzer,Job Safety and Contract Workers in the Petrochemical Industry,Industrial Relations, Vol.34, 1995,40-57,at 56;Kochan,Wells&Smith, Consequences of a Failed IR System: Contract Workers in the Petrochemical Industry, Sloan Management Review, Summer 1992, 79-89,at 87; John Gray Institute,Managing Workplace Safety and Health: The Case of Contract Labor in the U.S. Petrochemical Industry,July 1991. It is interesting that this notion of bringing the stakeholders together to resolve the safety issues was proposed by Supervisors Glover and Uilkema several times,but essentially ignored and refused by the other supervisors. Michael Henn October 28,2002 .Page 7 labor,but that all 27 were caused by refinery employees or refinery operations.' The Initial Study has failed to cite this study or take its findings into consideration, even though it is extremely recent and relevant. An Initial Study cannot simply ignore evidence of a contradictory nature. Further,the Initial Study appears to rely on papers written about a study performed in July 1991,which is not specific to Contra Costa refineries. prior to making conclusions regarding the impact of the proposed amendment, studies must be performed on Contra Costa refineries, including the receipt of quantitative evidence on the quality of training received by refinery workers. Until those studies are completed,the Initial Study is flawed and deficient. The Initial Study is flawed, it does not meet State and legal requirements, and evidence in the record mandates that an environmental impact report must be prepared. 3. The evidence constitutes a fair argument that the project may have a significant effect on the environment. Not only is the Initial Study deficient,but the record is replete with substantial evidence of fair argument that the project may have a significant impact on the environment and that an EIR must be prepared. Despite the mandates of CEQA,the Initial Study completely ignores the evidence. When qualified experts present conflicting evidence on the nature or extent of project's impacts, the agency must accept the evidence tending to show that the impact might occur. ftt oLOaMel&-the-Sw v Board of Syj2cmzrors(1986) 183 Cal.App.3d 229, 249, 227 Cal.Rptr.889, 912. A review of evidence previously submitted to the County establishes that there is substantial evidence of fair argument that the project may have a significant effect on the environment. Declaration of David Golick,April 16,2002 • Addresses CEQA issues relating to March 25, 2002 Initial Study. September,2002 study performed by Contra Costa County Health Services Department. Copy of study is attached to this letter and incorporated herein by reference. The other two incidents involved contract employees only in that contract employees were injured. Evidence indicates that those injured workers were employed by union contractors,and therefore trained in CAC-approved apprenticeship programs. See Investigative Report of Tosco Refinery Incident,attached and incorporated herein by reference. Michael Henn October 28, 2002 Page 8 Declaration of John Sakamoto.April 16, 2002 • Explains that "The Bay Area refinery contractor base is composed of union signatory and non-signatory contractors." • Asserts that "The proposed changes requiring contractors to utilize only workers who have completed certain apprenticeship programs approved by the California Apprenticeship Council will disqualify a large portion of the labor base,placing capital projects, as well as maintenance and repair projects, in j eopardy." Letter from merge Smith, June 10, 2002 • Testifies that"based on Cal-OSHA data, there is no correlation between attending the Trades' apprenticeship program and an improved safety record." • Testifies that "In fact, according to Cal-OSHA data, the refinery building trades workers have almost twice as many injuries as their non-trade counterparts.," Letter from California Contractors Alliance_,March 20, 2002 • Provided data that CCA-member companies have a significantly better safety performance record than comparable union contractors performing the same work in the Bay Area. Letter from Dr. Jay M. Finkelman, September 16, 2002 • States that "The math is irrefutable. If an employer is forced to hire(or select)more of a given population of workers with specific skill requirements-it will inevitably be forced to dig deeper into the pool of applicants or prospects. This typically entails a degradation of the average skill level of the final workforce that is selected." Study ofMgjor Chemical Releases b Cy ountyHealth Services, September 24, 2002 • Establishes that of the past 27 major accidents and incidents at County refineries, 25 of those incidents did not involve contractors. Letter from Dr. Jay M. Finkelman, October 7, 2002 • Addresses claimed safety issues and under-reporting of injuries. Letter from David Golick, October 25, 2002 + Addresses CEQA issues relating to revised October 7, 2002 Initial Study Michael Henn October 28, 2002 Page 9 The aforementioned sources are incorporated herein by reference. Additionally,we have recently reviewed data from the California Division of Apprenticeship Standards regarding the number of apprentices in crafts working at refineries. The numbers make it clear that if the amendment is passed, there may well be insufficient labor to meet the needs of the refineries,especially during peak periods. For example, in 1991 the Contra Costa Plumbers and Pipefitters JATC graduated just one apprentice. Over the past five years,the data shows that in Contra Costa, Alameda, Solano and Napa counties,there were about 85 total plumbing and pipefitting graduates from CAC-approved programs. Further, the 2000-2001 Biennial Report from the Department of Industrial Relations(copy attached) explains that the DAS has a records unit which keeps centralized records for"all active apprentices statewide, in addition to graduates in the last 20 years or more." The low rate of graduating apprentices in the area in the trades working at the refineries establishes that there are likely insufficient workers meeting the restrictions of the proposed amendment. These records are incorporated herein by reference and they should be obtained and evaluated by the County prior to adoption of the proposed amendment. The evidence above, along with all the evidence in the record,points to one inescapable and likely conclusion: in the event the proposed amendment is adopted there is insufficient labor in the area meeting the new requirements of the amendment to staff the refineries.9 This has the strong potential to lead to unsafe working conditions, chemical releases, fires, injuries, and other accidents and incidents having a negative impact on the environment,transportation, air quality, water quality and other resources. As required by CEQA,the County needs to gather and evaluate the relevant data prior to making its decision. The County has added clauses which state that the ordinance does not apply to contractors performing work immediately necessary to respond to an "emergency" and that 'other workers" may be hired if"trained" workers are not available after a two-day search. There is no evidence in the record that sufficient labor will available to respond to emergency situations or that sufficient labor will be available if"trained" workers are unavailable. Does the Board expect that other workers will be sitting around waiting for work, and when an emergency s It is not clear how many of these are plumbers and how many are pipefitters. It is also not clear how many are available for work and how many are still in the area. ' See April 16, 2002 Declaration of John M. Sakamoto,Para. 5; see testimony of Brook Seymour at February 20,2002 meeting of Planning and Policy Development Committee of Hazardous Materials Commission. Michael Henn October 28, 2002 Page 10 does occur or when so-called "trained" workers are unavailable, these "other" workers will be available for work? There is no evidence that such "other" workers"will be available. Rather, there is a shortage of local labor, and with enactment of the proposed amendment, a large portion of the currently available labor pool will be disqualified." Where will that workforce go? Surely the County cannot believe that those workers,with families to feed, clothe and shelter,will just "hang around" and wait for an emergency or the unavailability of"trained"workers. Surely the County cannot believe that the contractors employing those workers will remain in business in the area, despite losing a large portion of their respective business. There is no evidence in the record that the labor will be available, and this raises serious concerns regarding impacts on the environment, such as water and air quality,wildlife, wildlife habitat, and the health and safety of the citizens of Contra Costa County living near refineries and working at refineries." The Project Description makes the summary conclusion that the proposed amendment would "provide for better trained workers" and that it would "provide for an improved contractor selection process." These are merely summary conclusions without the requisite analysis our support. None of the cited sources establishes that the proposed amendment will have the tendency to provide for better trained workers or that the contractor selection process will be improved. No evidence establishes how CAC-approved programs prepare workers for refinery work in a better manner than other programs. In fact, evidence in the record establishes that the proposed amendment will lead to more incidents and injuries at the refineries." Even if the"other" workers are available, it is curious that the County is essentially declaring that the workers who are not trained in CAG-approved apprenticeship programs are not "as safe" as workers trained in CAC-approved programs. Essentially,by classifying non-CAC trained 14 April 16,2002 Declaration of John M.Sakamato,Para. 5; see testimony of Brook Seymour at February 20,2002 meeting of Planning and Policy Development Committee of Hazardous Materials Commission. " The same argument applies to the"two-day" search condition. There is no evidence that other contractors will be available to train and employ "other workers"and there is no evidence that"other workers" will even be available to work at the refineries. tz See June 10,2002 letter from George Smith to the County Hazardous Materials Commission (attached), in which Mr. Smith asserts that"according to Cal-OSHA data,the refinery building trades workers have almost twice as many injuries as their non-trade counterparts."The Bureau of Labor Statistics and Cal-OSHA maintain data regarding incidents and accidents at refineries. Even though this data could be helpful in determining whether the proposed amendment could lead to "better" or "improved" training and safety,the County has failed to obtain and evaluate the data. Michael Henn October 28, 2002 Wage 11 workers as "other than trained," the connotation is that those workers are "untrained" or "unsafe." However, during emergencies, when life and property are at peril and safety is of paramount concern, the County will then allow these alleged "unsafe/untrained" workers to work in the refineries. This raises the issue of even more environmental impacts,since these allegedly "untrained"workers will be at the refineries during emergencies,when impacts on the environment, such as water and air quality,wildlife,wildlife habitat, and the health and safety of the citizens of Contra Costa County living near refineries and working at refineries, have the highest potential for occurring. There has been no analysis of these issues or potential impacts. While a definition of"emergency" is proffered, it is not clear that an emergency includes situations such as strikes, slowdowns, lockouts or labor shortages. Once the amendment takes effect, the ordinance operates to prefer union labor for refinery work, and thus makes more likely the possibility of labor disputes, strikes, shutdowns, and stoppages or slowdowns.' Who will provide the labor in that event? What happens when a situation like the recent one with the dockworkers happens at the refineries? The impacts of the recent dockworkers slowdown and lockout will pale in comparison to a shutdown of the refineries and the impact on the surrounding environment and the price of gas. There has been no analysis of the potential impacts. Additionally, Section 3(13)of the proposed contractor safety/training amendment specifies that in order for contractors to be eligible to work at the refineries in the County, the contractors must employ: only journey-level workers who have graduated from a CAC-approved apprenticeship program; only apprentices who are enrolled in a CAC-approved apprenticeship program; and journey level workers who have completed the requisite safety and skills training. As drafted, it appears that the contractors must employ the requisite workers within the contracting company, wherever that contractor works,and not just at refineries in the County. For instance, if a contractor is building a winery in Napa,working on a chemical plant in Nevada, a refinery in Louisiana,or a high school in Sacramento, at all those jobs the contractor must comply with Section 3(B)or the contractor will be unable to work at refineries in Contra Costa County. There has bee no study of whether journey-level workers having graduated from CAC-approved apprenticeship programs are available to meet the staffing needs across the market. The workforce is now even more depleted. This leads to further environmental impacts which have not been addressed. 13 In 1996,unions were in decline, open shop share of the construction industry dollar was about 70-80% of the total market, and unions were attempting to find innovative ways to regain market share. Northrup &White,Subsidizing Contractors to Gain Employment: Construction Union Job Targeting, 17 Berkeley J. Emp. &Lab.L. 62 (1996) Michael Henn October 28, 2002 Page 12 3. Summary While CEQA requires that the County gather relevant data and study the potential impacts of the proposed amendment to the ISO, the County has ignored evidence in the record of a fair argument that the proposed amendment may have a significant impact on the environment, the County relied on cited sources that do not stand for the propositions and conclusions of the Initial Study and the County has ignored information and data in the cited sources. The County has failed to meet its burden of investigating potential impacts and the record does not demonstrate that significant impacts will not occur. Even though the County has chosen to ignore the foregoing, CEQA mandates that the County cannot hide behind its own failure, as lead agency,to gather and evaluate relevant data. The Initial Study is deficient and evidence in the record establishes that an EIR must be prepared. s, NICHOLAS ROSCHA NR:kc Enclosures cc: Clerk, Board of Supervisors(via hand delivery) David Golick Consulting Planner 4241 Dubhe Court Concord, CA 94521 October 25, 2002 Michael Henn Planner Community Development Department Contra Costa County 651 Pine Street, north Wing, 4th Floor Martinez, CA 94553 RE; Proposed Amendments to the Contra Costa County Industrial Safety Ordinance, Initial Study, County File#CP02-30 Dear Mike. I have been asked to review the Initial Study prepared for the proposed amendments to the Contra Costa County Industrial Safety Ordinance. My assessment is divided into two sections,General Comments and-Environmental Checklist Form Comments- 1 General Comments A. The quality of the Initial Study needs to be improved in order to provide an empirical evaluation of the potential environmental impacts of the proposed amendments. The Initial Study needs input from individuals with technical expertise in the various aspects of the petrochemical and related fields. It is apparent that the Initial Study was written by land planners who are not experts in industrial safety policies, regulations, and their potential environmental impacts. B. Contra Costa County used the generic checklist format for the Initial Study. As a stand-alone document, the checklist is appropriate for activities such as construction.projects. Policy and ordinance proposals, such as the Industrial Safety Ordinance, are individually unique and require supplemental narrative analyses to provide a realistic and complete assessment of the potential impacts on the environment. C. The initial Study and proposed Negative Declaration dated October 7, 2002, does not mention the status of the earlier Initial Study and proposed Negative Declaration dated March 25, 2002. It is very confusing to have two Initial Studies and proposed Negative Declarations prepared and made available for public comment for the same project. The concerned public needs to know the status of the March and October documents and their interrelationship. Because of the confusing relationship among documents, my comments regarding the Initial Studies include statements within this letter as well as industrial Safety Ordinance statements contained in my declaration provided to the County in April, 2002, regarding the March, 2002 Initial Study. D. The Table of Contents on page 2 refers to "Major Changes and Potential Impacts", but the project description on page 1 of the Environmental Checklist Form refers to "minor revision". First, it is confusing for the reader to comprehend whether the County believes the changes are major or minor. Second, the Environmental Checklist should be a value neutral document. Item #8 on page 1 of the Environmental Checklist should say "proposed amendments to the Industrial Safety Ordinance rather than "minor revision to the...Industrial safety Ordinance". 11 Environmental Checklist Form Comments A The Initial Study does not assess the potential environmental impacts of the proposed project, the ordinance amendment. The Initial Study does not evaluate any impacts. Technical sources cited provide general information regarding issues and situations which are not relevant or germane to the specific proposals contained in the proposed County ordinance amendment. In each subject area of the checklist, there should be a discussion of the potential environmental impacts, reasons why the potential impacts are significant or insignificant, and specific evaluations and/or specific relevant sources to support the conclusions. B. Summary statements contained in the Environmental Checklist should discuss potential impacts as stated in the above paragraph. Summary statements found in this Environmental Checklist primarily are boilerplate generalizations that are not related to the proposed project and an informative discussion of potential impacts. Summary statements prepared by County staff repeat truisms which are unrelated to the project, such as that new physical construction of facilities would have to comply with CEQA. C. Page 1, items 6 and 7: This is confusing. Inasmuch as the zoning must be consistent with the General Plan, the General Plan designation cannot be listed as "n.a." and the zoning designation listed as "any nonagricultural zoning district". Also,the above references zoning designation would erroneously lead a reader to believe that the proposed ordinance amendment applies to all residential, commercial, open space, and other zoning districts. D. Page 1, item 8: The project description should be value-free and not conclusive in nature. Statements such as "minor revision to the existing,..Ordinance" and "improved contractor selection" are not appropriate. Italics added for emphasis. E. Page 1, item 9: The Initial Study lacks a description of "Surrounding Land Uses and Setting". The only explanation is "n.a.". CEQA Guidelines call for a description of surrounding land uses and the setting. F. General outside sources are cited in the Summary section for each subject area. These sources are not specific to and do not directly relate to the proposed Contra Costa County ordinance amendment. Also, it is apparent that conclusions reached in the Initial Study are based on no research, technical Industrial Safety Ordinance .3- reports, 3reports, or studies specifically done for this project. Relevant cited sources should refer to specific page numbers for each subject area under assessment. However, that is not the case with this Initial Study. Rather than cite specific page numbers, this Initial Study cites page numbers in publications where the entire article or source may be found. Such citations are not helpful to the reviewer. CEQA Guidelines Section 15063(d)(3)states, "A reference to another document should include, where appropriate, a citation to the page or pages where the information is found". The CEQA Guidelines Discussion under Section 15463 states, "...the individual conclusions reached by an Initial Study must be based on some evidence. Entries on a checklist or another form should be briefly explained to indicate the basis for determinations." (Leonoff v Monterey County Board of Supervisors(1990)222 Cal. App. 3d 1337) G. Summary statements should be based on specific studies done for this project and accepted analytical reports completed by experts in the field of industrial safety and relevant to this project. No such studies and reports are documented in this Initial Study. The summary statements in this Initial Study contain unsubstantiated statements such as that under the proposed ordinance amendment the level of employee training would be improved and the contractor selection process would be improved. CEQA Guidelines Section 15063(dX3) states, "an Initial Study shall contain in brief form...entries on a cbecklist or other form—briefly explained to indicate that there is some evidence to support the entries". This Initial Study does not comply with Section 15063(dX3). H. in this Initial Study, summary statements often use the clause, "from an analysis of the proposed ordinance and the industrial facilities to which the training regulations would apply, there is no substantial evidence..." However, the reader is never advised where that analysis may be read and reviewed. In Sundstrom v. Mendocino (1988)202 Cal. App. 3d 296, the court said an agency must provide the information it used to reach its conclusions, and that a checklist unsupported by data and facts is not sufficient for an adequate Initial Study. 1. Page 4, Agricultural Resources Summary. The Summary is not correct. Agricultural resources potentially could be impacted whether or not, "the proposed changes would...apply to properties in agricultural zoning or use". The Initial Study should recognize that industrial uses in one zoning district can impact agricultural uses in another zoning district. J. Pages 4-5, Air Quality: There could be a significant impact on air quality or other environmental factors if an operational disruption occurs because of an inadequate number of workers or inadequately trained workers. This potential impact is not addressed in the Initial Study. K. Page 5,Air Quality Summary: The last sentence states, "The probable safety impacts resulting from improved worker training would be a beneficial impact of the changes." It has not been demonstrated in the Initial Study that the proposed changes to worker training would be an improvement. No research has been provided that past industrial accidents have been the result of poor worker training, and that proposed worker training modifications would reduce the possibility of such accidents in the future. The sources cited do not relate to the issues. Industrial Safety Ordinance 4 L. Pages 6-7, Biological Resources Summary: No relevant sources are offered for the last sentence which states, "The impacts from increased worker training and the selection of contractors with better safety records would be beneficial to the biologic resources of the County because of a reasonable probability of a lower accident rate and hazardous releases". This is an unsubstantiated commennt,nota statement of fact_ M. Page 7, Cultural Resources Summary: The first sentence says there will be "no effect on cultural resources". The last sentence says impacts "would be beneficial to any affected cultural resources". This paragraph is internally inconsistent and confusing. N. Rage 8* Geology and Soils Summary: I do not understand the last sentence of the first paragraph, which states, "The changes would improve the level of employee training, and improve the contractor selection process so that stationary sources must consider the contractor's safety record". Perhaps part of the thought was omitted. Again, this Summary contains the unsubstantiated statement that "improved worker training" would reduce "the frequency of accidental spills and releases". The proposed ordinance amendment would modify worker training programs. Submitted data does not conclude that worker training would be improved. Also, it is not a proven fact that there is a direct correlation between worker training and accidents. 0. Page 10, Hazards and Hazardous Materials Summary: Statements such as "use of better trained workers" would reduce hazardous incidents presupposes that past accidents have been caused by workers who were not well trained. No documentation is presented to substantiate this comment. Source#9 used in the Initial Study and cited as a source document for the Hazards and Hazardous Materials section does not support the conclusions reached in the Initial Study. Source #9 concludes that worker safety is enhanced by close supervision by company management, not by safety training. The proposed amendments to the County ordinance do not address factors cited in source #9 to improve worker safety and reduce the potential for accidents. According to source #9, as well as source#8, changes to federal and state laws would be needed to increase safety. These changes cannot be accomplished by a county ordinance amendment, no matter how well meaning that proposed county regulation may be. Page 87 of source #8 discusses ways to improve occupational safety. All discussed possible improvements are dependent on the federal government and an expanded role for the Occupational Safety and Health Administration (OSHA). Source #6, Causes of Underreporting of Job Injuries, provides interesting information regarding injuries. However, source #6 is unrelated to the Initial Study topic of Hazards and Hazardous Materials, and it provides no source documentation for any of the questions or answers on pages 9 and 10 of the Initial Study. P. Page 16, Transportation/Traffic Summary: One of the cited sources is #5, a report by James Rebitzer, Ph.D. This source does not discuss transportation or traffic related issues. Q. Page 18, Mandatory Findings of Significance Summary: Nowhere in the document is there an analysis of the availability of a labor supply to do the required work. The cited sources do not provide a rationale for the "no Industrial Safety Ordinance •5 impact" determinations, nor do they provide substantiation for conclusions reached in the Summary section. Sources have to be reasonably related to the proposed project and specific to the project. They should have page citations that address checklist questions and issues, not citations for the whole article being used as a source. R. Training and Accidents: Aside from the information discussed above, it is interesting to note that source # 5 concludes that training by host plants and close supervision by host plant management results in improved worker safety. The proposed ordinance amendment does not address training and supervision by host plant management. Source#11 questions the validity of available statistics regarding occupational injuries and the reasons for underreporting of injuries and illnesses. Based on factors discussed in this article, the real or correct relationship between injuries by contract workers versus company employees needs additional research not cited in the Initial Study. Source #11 questions the validity of :assumed relationships between injuries received by direct-hire or company workers and contract workers. 1 am aware of only one relevant study conducted in Contra Costa County which evaluated major incidents at refineries. This study, performed by the Contra Costa County Health Services Department, analyzed 27 major incidents at refineries located in this county. The study concluded that 25 of the 27 incidents did not involve contract workers, and none of the 27 incidents were caused by contract workers. Even based on the limited source data cited in the Initial Study, issues regarding worker training and occupational injuries are considerably more complex than stated in the Initial Study Summaries. Some of the issues that need to be addressed include the source of the training, the type of training to be provided, and training needs of long term versus short term employees. After reading the proposed County ordinance amendment, the Initial Study, and sources cited in the Initial Study, I conclude that County staff has prepared an inadequate environmental document. The initial Study does not address the complex environmental issues regarding training and safety. Many conclusions are not based on fact, and are contradicted by cited sources. The CEQA Guidelines require that conclusions be substantiated in the Initial Study, but they are not verified in this Initial Study. Sincerely yours, ...0 AIW4�16 David Golick Consulting Planner ANDERSEN, BONNIFIELD & CotiLg':,'A ATTORNEYS AT LAW ,, w nn r ti TELEPHONE: (925)802-1400 ONE CORPORATE CENTRE��" i.i :t fi J t `+'F1�A�SIMILE:(925)825-0143 1320 WILLOW PASS ROAD-SUITE 500 CONCORD,CALIFORNIA 94520-5244 HAND DELIVERED Michael Henn Community Development Department Contra Costa County 651 Pine Street,North Wing, 4`h Floor Martinez, California 94553 Re: Proposed Amendments to Industrial 1S-Afety Ordinance of the Contra Costa County Code County File#CP02430 Dear Mr. Henn: Our law office represents a number of concerned residents and businesses of Contra Costa County. We appreciate the opportunity, albeit upon abbreviated notice, to review the proposed amendments to the Industrial Safety Ordinance J"ISO")as set forth in the Notice of Public Review and Intent to Adopt a Proposed Negative Declaration dated March 25,2002.' We have been asked to submit this letter setting forth our comments on the proposed changes and offering into the administrative record the enclosed substantial evidence of impacts that have not been adequately investigated, analyzed or mitigated. Accordingly, the proposed negative declaration is improper since under these circumstances the California Environmental Quality Act("CEQA") requires an Environmental Impact Report to be prepared. Submitted with our comments are two expert declarations in opposition to the proposed negative declaration. The first expert,Dave Golick,has been a professional city planner in Contra Costa County for 29 years;having been in charge of the Planning Division of the City of Concord for ten years. He has prepared or reviewed over a thousand Initial Studies and Environmental Impact Reports under CEQA. Mr. Golick's declaration makes clear that the Initial Report grossly fails to contain an adequate basis for a negative declaration and that an EIR is required. Our second expert, John M. Sakamoto, is a professional licensed engineer and Senior Vice President with Eichleay Engineering Inc. of California. Eichleay is one of-the nation's largest engineering firms. Mr. 'We question whether the proposed negative declaration is premature since your Notice states these changes are still under review by the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. Michael Henn April 16, 2002 Page 2 Sakamoto has over 20 years experience in petrochemical and heavy industrial facilities; including extensive experience in the management, design, and construction of major petrochemical and refinery facilities. Mr. Sakamoto is thoroughly familiar with the labor markets involved and the significant reduction in the labor base that the proposed apprenticeship changes will have on that limited supply of skilled labor. That reduction will,in turn, adversely impact safety at refineries in the areas of risk of injury, property damage and offsite releases. He also points out the complete absence of supporting data for these changes and the need for an Environmental Impact Report. It is important to keep in mind that there are thousands of skilled workers from a limited labor pool who have the necessary skills and experience to work on refinery projects. This is specialized work requiring skills and abilities not required on the average construction project. Any adverse effect on the labor force will have direct and indirect impacts on the environment. While the proposed changes pertaining to imposition of apprenticeship programs ostensibly seek to contribute to the safe operation of the refinery facilities in this county, their real effect will be to drastically reduce the limited workforce that has the requisite skills to safely operate the facilities. Thus, instead of increasing safety,they will have the'exact opposite effect of decreasing safety as well as adversely impact the environment. The changes are ill-considered and an EIR would certainly provide the data demonstrating the severe impacts these changes would have if implemented. Our clients believe that the potential environmental impacts resulting from the enactment of the proposed changes to the Industrial Safety Ordinance have not only not been adequately addressed but have not been addressed at all. Given the seriousness of the potential adverse impacts on the environment,the County's failure to require an EIR under these circumstances is cause for alarm. 1. The Failure to Cite Supporting Facts or Studies Renders the Initial Study Defective Even a cursory review of the Initial Study and Proposed Negative Declaration ("Initial Study") reveals that the Initial Study was not prepared in conformance with the requirements of CEQA. There is, practically speaking, a complete failure to provide citation to supporting documentation of any kind to the conclusions drawn. a. There is a complete failure to cite supporting evidence regarding the proposed apprenticeship changes As to the apprenticeship program changes,there is absolutely no supporting documentation of any kind whatsoever cited. Under subsection (4)to Section II. Project Description of the Initial Study no data or studies are cited whatsoever.This failure alone causes the Initial Study to be grossly defective. All that is contained in that subsection are completely unsupported conclusions. Michael Henn April 16, 2002 Page 3 Furthermore,those`conclusions' are completely speculative. The statement that a project"may be better than the existing training programs"adds nothing to the analysis. The project may be worse just as easily. There is nothing to document the claim that the proposed apprenticeship programs would be better or worse that present training Thus the conclusion that the project"can decrease the potential for a major chemical accident or release"is no more probable than that it could just as easily increase the potential for a major chemical accident or release.In fact,there is believed to be statistical data available that would demonstrate that the safety record of graduates from apprenticeship programs is worse than that of those contractors who rely on in- house training of their workforce. In any event, none of this has been considered. Instead, completely unfounded conclusions are made, which cannot serve as the basis for a negative declaration. [Golick and Sakamoto declarations.] b. No Meaningful Evidence Is Cited Supporting The Checklist Questions The conclusions reached in the Initial Study are based on the`answers'to the Environmental Checklist Form attached to the Initial Study. However,while the form has been completed,in part, it has not been completed with the level of detail and analysis required by CEQA. It is simply not enough to complete the checklist questions by merely checking a box. Brief,but specific reference to supporting facts and documentation needs to be provided. The Initial Study contains no such references. The sole`attempt'to reference supporting facts is the statement"(All Source#4)in response to a few of the questions on the checklist. On page 3 of the Environmental Checklist under the heading "SOURCES" four items are listed. Three of them have nothing to do with the project specifics as they are simply the Contra Costa resource Mapping System,the County General Plan and General Plan and Zoning Maps. The Fourth is"Project Description." The Project Description is set forth under heading"11. Project Description"of the Initial Study. It is improper to refer to the Project Description as supporting documentation. [See Golick Declaration, par. 15, 4:11-12] All the Project Description contains is the recommendations as to what changes should be made,without any supporting facts or data.No real data or studies are cited whatsoever upon which a person could draw conclusions. CEQA guidelines,Appendix G,"Evaluation of Environmental Impacts",item 2 states"All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level,indirect as well as direct,and construction as well as operational impacts." Moreover,"[t]he explanation of each issue should identify: a)the significance criteria or threshold,if any,used to evaluate each question;and b)the mitigation measure identified,if any,to reduce the impact to less than significant"[Id.,item 9]"Lead agencies are encourage to incorporate into the checklist references to information sources for potential impacts(e.g. general plans,zoning � 4 • . f Michael Henn April 16, 2002 Page 4 ordinances). Reference to a previously prepared or outside documents should, where appropriate, include a reference to the page or pages where the statement is substantiated."[Id.,item 6]"A source list should be attached, and other sources used or individuals contacted should be cited in the discussion." [Id., item 7] 14 California Code of Regulations Section 15063 sets forth the guidelines for preparation of an Initial Study. Subsection(a)(3)states"An initial study may rely upon expert opinion support by facts,technical studies or other substantial evidence to document its findings." Subsection(C)(5) states that the purpose of an Initial Study are to"Provide documentation of the factual basis for the finding in a Negative Declaration that a project will not have a significant effect on the environment. Subsection(D)(3)states that an Initial Study shall contain"an identification of the environmental effects by use of a checklist,matrix,or other method,provided that entries on a checklist or other form are briefly explained to indicate that there is some evidence to support the entries. The brief explanation may be either through a narrative or a reference to another information source such as an attached map, photographs, or an earlier EIR or negative declaration. A reference to another document should include,where appropriate,a citation to the page or pages where the information is found." In the Discussion section following the foregoing guidelines its states "This section also clarifies that the individual conclusions reached by an initial study must be based on some evidence. Entries on a checklist or other form should be briefly explained to indicate the basis for the determinations. These explanations are not intended to be as detailed as an EIR. (Leonof,f v. Monterey County Board ofSupervisors(1990) 222 Cal.App.3d 1337) What is patently obvious from a review of the Checklist responses is that the Initial Study has completely failed to support its recommendation for a negative declaration. 2. The Initial Study Completely Fails to List Any Beneficial Impacts The Initial Study States on page 4 under heading B.CEQA Process,that"Where beneficial impacts are likely, this initial study so indicates." Remarkably, no impacts of any kind are noted, beneficial or adverse. An initial study must consider all impacts of a project. Sundstrom v. Mendocino(1988)202 Cal.App.3d 296 It was incumbent on the authors of the Initial Study to list both potential beneficial impacts as well as adverse impacts. Presumably, there are no beneficial impacts to the project, which suggests the project is without merit. [Gulick declaration, par. 5-6, 2:11-22] Michael Henn April 16,2002 Page 5 3. The Initial Study Incorrectly Describes the Apprenticeship Program Language Contained in the Proposed Amendments and Is Substantively Different From the Actual Language Proposed On page 9 of the Initial Study its states that in the event a contractor had not executed an apprenticeship agreement within the first three years.for each apprenticeable occupation it could alternatively"have at least 50%of employees be journey level in each apprenticeable occupation." The actual language of the proposed amendments under Section(C) (3)(a) states: "or, (ii) employ a journey level workforce in which 50%of the workers in each apprenticeable occupation employed by that contractor at the Stationary Source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council." There is a significant difference between having to have 50%of the employees journeymen,and the language of the proposed change which is that all workers have to be journeyman,but only 50%need be from an apprentice program. There is a substantial inconsistency between the effect of the statute as described and the actual language proposed.The ambiguity created precludes effective public comment.[Golick declaration, par. 8, 2:226-28] 4. The County Has Completely Failed to Evaluate Achievement of Short-Term Environmental Goals to the Disadvantage of Long-Term Environmental Goals Which is Mandated By Statute Section 21083 of the California Public Resources Code provides that in determining whether a project may have a"significant effect on the environment" a "significant effect" will be found under subsection (a) if "A proposed project has the potential to degrade the quality of the environment,curtail the range of the environment,or'to achieve short-term,to the disadvantage of long-term, environmental goals." This is a mandatory requirement. However,the Checklist form used in the Initial Study,under Section XVII. Mandatory Findings of Significance fails to include any consideration of this issues and the Initial Study fails to address it anywhere else. If, in fact, achievement of short-term goals in to the disadvantage of long-term environmental goals an EIR must be obtained. Until there is due consideration given this issue,the Initial Study is'defective. 5. The Proposed Apprenticeship Requirements Will Severely Impact the Available Labor Force Adversely Impacting Safe Operation of the Refineries,and Increasing Risk of Accidents Resulting in Environmental Harm As set forth in the Declaration of Mr. Sakamoto, there is a limited skilled labor force available to perform new construction and/or maintenance and repair of the four refineries in Contra Costa County. Imposition of apprenticeship program requirements will immediately remove a substantial portion of that labor force from eligibility to work at the refineries. As Mr. Sakamoto Michael Kenn April 16, 2002 Page 6 concludes, based on his extensive experience in design, management and construction of petrochemical facilities,this labor shortfall may result in decreased safety at the refineries including increased risk of accidents resulting in adverse environmental impacts.[Sakamoto declaration,par. 5-6,2:13-21] 6. Many Other Adverse Impacts Were Not Given Due Consideration in the Initial Study As previously indicated,if substantial evidence shows that a proposed action may have even a single unmitigated adverse environmental effect,a full EIR must be prepared. It is inadequate to cite to the project description(which omits supporting data of any kind) in support of a negative declaration Moreover, since the parameters of the.proposed changes to the ISO are so fluid and unsettled,its potential adverse environmental effects cannot adequately be analyzed. Nevertheless, it is clear from a review of the proposed changes to the ISO as well as common sense, that the proposed changes to the ISO will have numerous adverse environmental impacts. The nature of these impacts will be briefly discussed below. Also many of these are addressed by Mr. Golick in his declaration. [Golick declaration,par. 17-24,2:19-5:281 It is important to note that there are thousands of skilled workers who work at the Contra Costa refineries.If their ability to work is impaired or precluded by the apprenticeship changes there will be a host of adverse impacts directly and indirectly affecting the environment. Chief among these would be increased impact on traffic, and the probable decrease in production of refinery products. Many other areas would be affected as well. 1. Land Use. The proposed changes to the ISO do not address or analyze whether it impacts changes in land use nor does it explain why possible change in land use is not a significant environmental impact. Furthermore,the proposed changes to the ISO is likely to impact the location, distribution, density and/or growth rate of the human population in the area, including temporary increased occupancy in the subject areas. There'is likely to be substantial changes in the number of jobs and type of employment in the subject area due to the proposed changes to the ISO. It is possible that the proposed changes to the ISO will result in development outside the subject area which might have adverse environmental impacts. 2. Consistency with Other Ordinances and Policies. There has been no determination that the proposed changes to the ISO is consistent with other federal,state and local ordinances and policies. Nowhere is there any analysis of other statutes, laws and ordinances as they relate to the proposed changes to the ISO and such an analysis must be made. Yet the proposed changes regarding apprenticeship programs arguably seek to unlawfully preempt applicable state and local laws which are controlling. Michael Henn April 16, 2002 Page 7 3. Earth. There has been no examination of whether the proposed changes to the ISO will result in unstable earth conditions or changes in the geologic substructure. Throughout Contra Costa County there is evidence.of diverse and unstable soil and ground water conditions and potentially significant seismic activity areas, all of which should require detailed analysis. 4. Air. It is likely the proposed changes to the ISO will cause substantial air emissions and deterioration of air quality because of delays in maintenance and repair. Additionally, no consideration is given as to whether the proposed changes to the ISO will impact the available labor pool to such an extent that repair and maintenance`of the industrial facilities cannot be readily undertaken. 5. Water. No investigation has been undertaken to determine whether the proposed changes to the ISO and resulting time delays will impact ground water. 6. Plant Life. It is unclear whether.the proposed changes to the ISO will impact the numbers of any unique,rare and dangerous species of plant or animal habitat. 7. Animal Life. It is not known whether the Proposed changes to the ISO will have any potential environmental effect on animal life.Adjacent to the refineries are open lands,wetlands or other habitat areas of protected animals such as the red leg frog, Alameda whipsnake, tiger salamander and burrowing owls. A reduction in safety resulting in offsite releases will directly impact these animals. 8. Noise. There has been no determination whether there is a potential environmental effect relating to noise emanating from the proposed changes to the ISO. 9. Natural Resources. It is not known whether the proposed changes to the ISO will increase the use of fuel and water, and whether such increase will be insignificant or not. 10. Risk of Llpset. There is no indication ofwhether the proposed changes to the ISO has seismic ramifications. 11. Jobs and Housing. It is not known whether the proposed action will increase or decrease jobs and whether it will bring new people to the general area. 12. Public Services. The effects of the proposed changes to the ISO upon public services including fire and protection is not known at this time. Michael Henn April 16, 2002 Page 8 13. Enery. It is not known whether the proposed action affects substantial fuel and energy use. 14. Aesthetics. It has not been determined whether the proposed changes to the ISO will have a significant aesthetic effect on the environment. 15. Mineral Resources: Gasoline, jet fuel, heating oil, and all other petrochemical products produced at the refineries will likely be adversely impacted since inadequate labor resulting from the apprenticeship changes will slow new construction, maintenance and repair, increase downtime due to accidents and generally result in louver production of these products 16. Transportation: Significant adverse impacts on traffic can be anticipated due to the apprenticeship changes. A significant part of the limited skilled workforce will be precluded from working at the refineries. These workers will need to travel greater distances to find replacement work. At the same time whatever few workers from outside the area may qualify to work at the refineries will have to travel from outside the county adding significantly to the numbers of cars and trucks on our roadways. AN ENVIRONMENTAL IMPACT REPORT IS NECESSARY TO PROPERLY EVALUATE TIME POTENTIAL ADVERSE IMPACTS TO THE ENVIRONMENT Our clients believe that full public hearings are necessary regarding legislation where great public concern is expressed. The environmentalreport process would provide such public hearings and would be sensitive to fully assessing and solving the environmental impacts caused by the proposed changes to the ISO. Through a full public hearing process the environmental impacts would be identified, analyzed and mitigated to assure the protection of the citizens of Contra Costa County. That protection can only be afforded with a full and complete environmental analysis of all the possible impacts of the changes to the ISO and the identification of adequate mitigation measures. No meaningful attempt has been made to even identify all of the significant environmental impacts of the project, let alone mitigate those impacts. We urge the Board to follow the requirements of the California Environmental Quality Act, ("CEPA"), and require a full and complete environmental impact report to accomplish at least the following four things: 1. Adequately, clearly and completely identify all of the aspects and ramifications of the proposed changes to the ISO so that a meaningful environmental analysis may be prepared. Throughout this very brief process since introduction of the proposed changes to the ISO, it has been and remains constantly changing due to its ongoing consideration by the Hazardous Materials Commission and the Public and Environmental Health Advisory Board. CEPA requires i Michael Henn April 16, 2002 Page 9 a stable, concrete and meaningful identification of the aspects and ramifications of the proposed action so that all of the environmental impacts maybe assessed. 2. Accurately, meaningfully and honestly analyze all of the potential significant environmental impacts of the proposed action including,but not limited to, the very real impacts upon the earth, land use, air, water,plant and animal life, natural resources,jobs,housing, public services,energy and aesthetics and such other impacts that have not been adequately investigated and analyzed. Only when this is done can mitigation measures be designed and required. 3. Consider and impose meaningful and thoughtfully constructed mitigation measures at the time of the proposed action instead of leaving these things to be determined through future study and imposed at a later date. CEPA requires that mitigation measures be clearly and accurately identified and imposed at the time of approval, not left for nebulous review and approval at some time in the future. 4. Conduct a full and complete alternatives analysis,cataloging and examining all other possible actions appropriate for this subject matter. Without the preparation of an environmental impact report,an alternatives analysis will not be prepared and the weighing and ranking of alternatives based upon environmental impacts will not take place. The proposed changes to the ISO has moved towards approval with perhaps unprecedented speed. We are concerned that the haste to approve the proposed changes to the ISO has contributed to the County's failure to satisfy the obligations of CEPA. It is clear from an examination of the documents available so far that an environmental impact report,("EIR"), should be prepared. The State CEPA Guidelines, ("The Guidelines"),are clear in requiring an EIR in a "marginal case where it is not clear whether there is substantial evidence that a project may have significant effects on the environment." Serious public controversy exists over the proposed changes to the ISO as evidenced by the ktached declarations as well as those who will ultimately appear before the Board. Our office has attempted to closely review the proposed changes to the ISO within the time allowed. The conclusion is that the proposed changes to the ISO could have a significant effect on the environment. If the agency determ ne'sthat there is substantial evidence that any aspect of the action, either individually or cumulatively, may cause significant effects on the environment,then the lead agency shall prepare an EIR. As pointed out by The Guidelines, an initial study is necessary in order to provide the factual and analytical basis justifying the decision to not require an EIR, adopt a negative declaration or to focus an EIR on significant effects of an action. The lead agency then must provide a public review period for proposed action including the ability to review the initial study. Y Michael Henn April 16, 2002 Page 10 Furthermore, the County should consult with all responsible agencies and trustee agencies to determine their input of whether an EIR should be undertaken. It is unclear what attempt has been made to contact and involve other responsible agencies and trustee agencies to discuss their feelings, concerns and intents relative to the proposed changes to the ISO or what responses may have been received, if any. It is well established that if the lead agency, in this case the County of Contra Costa, finds that there is substantial evidence in the record before it that the action being considered for approval may have a significant affect on the environment, it must prepare an EIR. Thus, if the lead agency is presented with a"fair argument" supported by evidence in the record that a project and/or action may have a significant effect on the environment, it must prepare an EIR even though presented with other substantial evidence that the project will not have a significant effect. CEPA does not allow the agency to resolve at conflicts about the potential significance of an environmental effect. If the evidence 'sin conflict,the effect must be deemed potentially significant and an EIR must be prepared. "Where it is unclear whether there is substantial evidence of a significant effect on the environment, an EIR must be prepared where either there is serious public controversy or there is disagreement between experts over the significance of and effect on the environment. Clearly, in the instant case,there is a serious,public controversy and expert testimony regarding the significance of the effects on the environment of the proposed changes to the ISO. It is only when there is no credible evidence that the action as proposed to be carried out may have a significant affect on the environment that the lead agency may properly determine that an environmental impact is not needed or prepare a negative declaration. Given the two extremely well qualified expert declarations of both Mr Golick:(a city planner)and Mr. Sakamoto(a license professional engineer experience in the design,management and construction of refineries)that an EIR is required for the proposed changes, there is no question but that an EIR is required It is not known whether the proposed action will have environmental impacts which are individually limited, but cumulatively considerable. -An analysis of the cumulative impacts must be complete and address not only all existing and approved projects, but all reasonably foreseeable future projects. Lastly, the mitigation measures have not been identified to address all significant environmental effects. It should be noted that any attempt to defer environmental analysis to future studies is a clear violation of CEPA's requirement that environmental effects by analyzed and addressed at the earliest possible action stager No meaningful effort has been made to identify the potential environmental impacts of the proposed changes to the ISO, mitigation measures also have not been adequately addressed. Michael Henn April 16, 2002 Page I I In conclusion,we urge that the Community Development Department and Board of Supervisors satisfy the requirements of CEPA, and obtain a full and complete environmental impact report for the proposed changes to the ISO. Very truly yours DERSEN ~ 1AWUMBOAR1IMM { B t NGHAM McCUTCH E N FciCsIrrille CONSIDER WITH DATE. October 28, 2002 OUR FILE NUMBER: 01947-059 NAME FAX PHONE TO Mike Henn (925) 335-1299 (925) 335-1290 Contra Costa County Silvano B. Marchesi (925)646-1078 (925)335-1800 Contra Costa County FROM Sanford M. Skaggs (925) 975-5390 (925) 975-5310 s.skaggs@bingham.com PACES(INCLUDING THIS COVER PAGE): 95 Binjham McCutchan LL? RE Sufle 310 1953 Norlh California Bl•d. Message: PO Box v Walmut Croak,CA 94596.1270 0:S,937.6000 925.975.S390 Fox 6019Aam earn Boa6on HorMord London Its Angeles Now York San Francis= Silicon Volley Singapore Walnul Creek Washingion For transmission problems,please call(925) 975-5386 Caution —Conftdendal The infornwtion in thisfar is confidential and may also he privileged attorney-client information,and attorney workproduct. It is inrended nnly jhr the ret%pieni(s)named above. Ifyou aren't a named recipient or his/her authorized representative, any reading, use, copying or di.erinstire of This fiar is strictly prohibited. if you wren 7 a named recipient,pieare call the above number(collect)now and return thin fax in ns by wail ai the above address. Thank you, v v LV- L V V L J L V I . v e l.a l 11 1-l I l l v v v v i i. ..v .v. J l s V L1 I/ BINGHAM MCCU`fCNEN October 25, 2002 Diroct; (925)975-5310 s.skalggs@bingb=.ccm VIA TELECOPIER Binghom McCutchan LLP Michael Henn Suite 2101 1333 North California Blvd. Special Projects Planner Pd Box V Community Development Department Walnut Creak, CA Contra Costa County 94596.1270 County Administration Building 651 fine Street,North Vying,4th Floor 925.937.8000 Martinez, CA 94553 925.975.5390 fax RE: Amendments to the.Industrial Safety Ordinance binghom,com Proposed Negative Declaration (County File No. CP02-30) Boston Dear Mr. Herrn: Hartford London We have been asked by Shell Oil Products U.S. to review and submit Los Angelos comments on its behalf on the proposed Negative Declaration being circulated New York San FranciscoYork in conjunction with the amendments to the Contra Costa County Industrial Silicon valley Safety Ordinance ("ISO"). Shell is concerned that the proposed amendments singaporc to the ISO will increase rather than decrease safety risks at refineries, and will Walnut Crcek cause delays and disruption of refinery operations with consequent negative washinglan impacts on the environment. In support of the proposed amendments to the ISO,the County relies on an incomplete and unsupported Negative Declaration,which erroneously concludes that there will be no significant impacts on the environment. For the reasons set forth below, the Negative Declaration does not comply with the basic requirements of the California Environmental Quality Act, Public Resources Code sections 21000 et seq., and the County must prepare an environmental impact report if it elects to proceed with the proposed ISO amendments. A. Negative Declaration Standard. CEQA establishes a strong presumption in favor of preparation of an E1R. If the project at issue may cause a significant impact on the environment, then the lead agency must prepare an EIR. Pub. Res. Code §§ 21080(d) & Michael Henn October 28, 2002 Page 2 2115l(a); CEQA Guidelines, 14 Cal. Code Regs. § 15064(a)(1), (f)(1). A Negative Declaration is therefore appropriate only where there is no substantial evidence in light of the whole record that the project may cause a significant effect on the environment. Pub. Res. Code § 21080(c)(1); CEQA. Guidelines, 14 Cal. Code Regs. § 15070(a). CEQA thereby establishes a"low threshold" for requiring the preparation of an EIR. Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296, 310 Bingham McCurchr,m «P (198 8) (quoting No tail, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 84 (1974)). blmsham co« Under the well-established"fair argument" standard, an EIR is required whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the environment. No Oil, 13 Cal. 3d at 75;Friends of B Street v. City of Hayward, 106 Cal. App. 3d 988, 1000-03 (1980). If any aspect of the project may result in a significant environmental impact, an EIR must be prepared even if the overall effect of the project is beneficial. CEQA Guidelines, 14 Cal. Code Regs. § 15063(b)(1). Furthermore, if substantial evidence supports a fair argument that a project may have a significant environmental effect,the lead agency must prepare an EIR even if it is also presented with other substantial evidence indicating that the project will have no significant effect. CEQA Guidelines, 14 Cal. Code Regs. § 15064(f)(1). The fair argument standard thus prevents the lead agency from weighing competing evidencc to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. Stated another way, "[r]ftheree [is] substantial evidence that the project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration,because it could be `fairly argued' that the project might have a significant environmental impact." Friends of B Street, 106 Cal. App. 3d at 1002; see also No Oil, 13 Cal. 3d at 85 (EIR is necessary when there is conflicting evidence as to whether the project may have significant impacts). In evaluating whether substantial evidence supports a"fair argument'' that a project may have a significant effect on the environment, the lead agency must examine the entire administrative record. Pub, Res, Code §§ 21080(c)-(d), 21082.2. In this case, the record as a whole contains substantial evidence supporting a fair argument that the County's proposed ISO amendments may have significant environmental impacts. As a result, the County's decision not to prepare an EIR violates CEQA. CEQA requires the County to prepare an EIR Michael 'Henn October 28, 2002 Page 3 to analyze the potential environmental effects of the proposed ISO amendments and to evaluate project alternatives and mitigation measures. B. Analysis The Negative Declaration circulated for the ISO amendments does not satisfy the requirements of CE.QA. The proposed amendments to the ISO would restrict contractors' ability to hire qualified, experienced workers, and thus Binghont McCuichen LLP increase safety risks. The restrictions on the labor pool may also cause biitghom.com significant delays with refinery maintenance and turnarounds, further compounding the environmental impacts. There are also potential negative environmental impacts from the proposed ordinance's reliance on programs approved by the California Apprenticeship Council ("CAC") in light of the U.S. Department of Labor's pending derecognition proceedings. None of these potential environmental impacts have been evaluated or considered. 1. The Proposed Ordinance Decreases Safety The conclusions in the Negative Declaration are based on the entirely unsupported assumption that the proposed changes would increase safety at oil refineries and other industrial facilities. However, as both the County Public and Environmental Health Advisory Board (PEHAB) and the Planning and Policy Development Committee of the County Hazardous Materials Commission (HMC) have found, there is no substantial evidence that these amendments would improve safety. On the contrary,the evidence shows that the proposed revisions are far more likely to have the opposite effect. The amended ISO would severely restrict the labor pool from which contractors may hire skilled workers for refinery maintenance and turnarounds, and may therefore force contractors to hire less experienced and less qualified workers. The Initial Study attached to the Negative Declaration repeatedly cites improved worker safety as the basis for its conclusions that no significant impacts are reasonably probable in any of the areas studied. For example, it asserts that"[t]he changes proposed would cause the use of better-trained workers, which would reasonably have the effect of reduced incidents involving hazards and release of hazardous materials." (Neg. Decl., p.10). This assumption is directly contrary to the findings of the FEHAB and of the HMC's Planning and Policy Development Committee made after detailed review, analysis and consideration of available evidence. At the request of the Board of Supervisors, both PEHAB and the I-B4C undertook a comprehensive review of the proposed ISO amendments in order to make recommendations to the Hoard regarding their adoption. The HMC's u,-i, 1a, 1UU1 lrivi cliuunnivi Iv11,UU1 ,ntiv yrs iuv, ��t7o r, ai i7 Michael Henn October 28, 2002 Page 4 Planning and Policy Development Committee and PEHAB's Environmental Subcommittee were charged with developing recommendations for their respective bodies. These committees met monthly from January to June,2002, to review and discuss available evidence and develop recommendations. The full HMC and PEHAB met jointly to hear testimony from labor and industry groups and the public regarding the proposed changes. Based on this intensive review, both the HMC's Planning and Policy Bingham MCCoch*n LLP Development Committee and PEHAB's Environmental Subcommittee l�inuhum corn concluded that there was no substantial evidence that the proposed changes would improve worker safety, In voting against the proposed amendment, the Planning and Policy Development Committee cited the lack of any evidence that contract workers trained in programs approved by the CAC had better safety records than those trained elsewhere. The Environmental Subcommittee reached the same conclusion. Based on these findings, PEHAB has recommended that the Board reject the contractor training requirements.' These conclusions are entirely consistent both with the evidence and with the operative provisions of the ordinance. The amended ordinance would require contractors to hire"trained" workers from Contra Costa, Alameda, and Solano Counties if available, before hiring from outside these three counties. A "trained worker" is defined for the first three years as a journey level worker who is a graduate of an apprenticeship program approved by the CAC. After three years, the definition expands to include apprentices of an apprenticeship program approved by the CAC. To qualify as a"trained worker" under the amended ordinance,journeymen must complete 20 hours of training every year at an apprenticeship program approved by the CAC. Journeymen trained at apprenticeship programs that are not approved by the CAC must still meet this requirement and they must also pass a test that is either administered by a CAC-approved apprenticeship program or approved by the CAC and administered by an accredited public college. If there is an inadequate supply of"trained" workers in Contra Costa, Alameda, and Solano Counties, contractors may expand their hiring pool. However, contractors are still restricted to journeymen and apprentices who I The HMC was unable to gamer sufficient votes for a specific recommendation and hence made no recommendation to the Board. UL I, LD, LUUL LIrIV[ DiIvunmiyi IYI,,UUIi,ncIv YYI IUU, )100 C, DI i7 Michael Henn October 28, 2002 Page 5 graduated from or are enrolled in CAC-approved apprenticeship programs.' Journeymen must also complete 20 hours of training through a CAC-approved apprenticeship program every year. The proposed ordinance restricts contractors from hiring workers who live outside of Contra Costa, Alameda, and Solano Counties and who are not graduates or enrollees of an apprenticeship program approved by the CAC. It thus precludes contractors from hiring skilled, experienced oil refinery 6inghorn M;Culchm LLP workers who were trained on the job or through other apprenticeship binghom coin programs. As a result, the amendment will likely force contractors to hire workers who have little or no training or experience in refinery work, even though they meet the ordinance's definition of a"trained worker." By limiting the supply ofwell-qualified workers and compelling contractors to hire inexperienced workers, the ordinance has a significant potential to cause increased safety risks. In turn, these heightened safety risks significantly increase the potential for a chemical accident or release. The Negative Declaration wholly fails to consider these factors in concluding that there is no potential for significant environmental impacts. None of the materials cited as "Sources" in the Initial Study support its assertion that worker safety would improve as a result of the IS© amendments. Virivally all of the cited materials that address the issue of worker safety analyze the relative safety records of direct-hire versus contract workers. None address the relative merits of CAC-approved apprenticeship programs versus other types of training and experience in improving worker safety, and none contain any evidence indicating that restricting the qualified labor pool in the manner proposed will improve safety. On the contrary, they demonstrate that workers who have more on-the-job experience,training and familiarity 2 The narrow exception relating to testing-in described above applies here as well. However, we question whether this provision would really enable non-CAC approved apprenticeship program graduates to test in. CAC--approved apprenticeship programs generally do not, and have no incentive to, offer a test to such journeymen because doing so would only increase competition with their own journeymen. As for testing-in through a test offered at an accredited public school,we are unaware of a single two-year or four- year college that currently provides such an option and the record is devoid of any evidence that such tests exist. Moreover,journeymen who passed a test administered by a public school would still need to find a CAC-approved apprenticeship program willing to provide them with 20 hours of mining a year. Vl, 1, IU, LVVL .J , L I I IYI U iiYuiinm im,I.0 I L,nLiv MIL IYV, J't7o f, I/ I; Michael Henn October 28, 2002 Page 6 with petrochemical plants are likely to be substantially safer than workers who have little or no such familiarity, training or experience. As noted in the Industrial Relations article Job Safety and Contract Workers in the Petrochemical Industry [Rebitzer 1995)—cited as "Source No. 9 in the Initial Study"—refinery operations involve complex and interrelated processes, many of which are implicated during refinery turnarounds. Various components in a petrochemical plant earl interact with each other in ways that einghom McCurchan LLP are both unplanned and difficult to comprehend. (Id. p. 46) Studies cited in bingh®m.com the same article show that because of the"complex and tightly coupled" refinery production processes, serious accidents are often the result of an unexpected series of events triggered by small and otherwise innocuous accidents or events. (Id. p. 47) Workers with less experience with the overall facility may be less able to predict the safety consequences of their actions, regardless of how much training they have received in their particular craft. Stated differently, such workers may lack the facility-specific knowledge and experience required for optimum safety. (Id,) Although the primary focus of the article is on contractors with less experience in refinery operations, the same logic applies to the workers employed by such contractors. These considerations are particularly important in the context of refinery turnarounds, for which relatively large numbers of specialized contract workers are normally required. Such turnarounds typically require shutting down highly productive and expensive capital equipment and hence must be completed quickly and efficiently. (Rebitzer at p. 42) The need for trained workers, experienced and familiar with refinery operations is particularly acute in this context, and the restrictive provisions of the ISO amendments will preclude refineries from using the workers best suited to the task. In addition to the evidence cited in the "Sources," numerous letters, declarations, articles and other materials already in the record—as well as the conclusions of PEHAB and the Hazardous Materials Commission's Planning and Policy Development Committee—demonstrates that the proposed amendments will not increase safety and are more likely to have the opposite effect. The conclusions to be drawn from this evidence were aptly summarized in the letter of Jay Finkelman, Ph.D., C.P'.E., submitted to the Board on September 17`h (copy attached). Dr. Finkelman, an industrial and forensic psychologist, concluded, after careful review of the proposed amendments, that. (1) There is no credible rationale or empirical research that supports the utility of imposing a CAC-approval or training requirement on workers from a safety perspective; W, jVUz J: z l rm b l UhAM IKUU I cntN WG NU. 3498 , 6115 Michael Henn October 28, 2002 Page 7 (2) There is no basis for concluding that CAC-approved programs are superior to other training or experience requirements imposed by refinery contractors— and there is some basis to conclude that they may be inferior; and (3) To impose standards that artificially restrict who can provide the training and assessment to refinery workers "may prove counter- productive to the safety agenda by reducing the opportunities that Bingham McCulehem «P workers have to obtain necessary training—and thus reducing the Lingham,com population of properly trained and certified workers." 2. The Proposed Ordinance May Cause Significant Delays and Consequent Environmental Impacts Restricting the labor pool may have additional environmental impacts caused by delays in completing refinery turnarounds and scheduled and unscheduled maintenance. The unavailability of properly trained, experienced workers could delay or disrupt performance of required refinery turnarounds. Increasing the number of inexperienced workers also increases the chances that problems or unanticipated events may occur during turnarounds that such workers are not equipped to handle,thus necessitating shutdowns while the incidents are assessed. Furthermore, during a turnaround, it is cornrnon to identify additional maintenance work that needs to be undertaken that is not within the initial scope of work. Such maintenance work may require specialty labor that could not immediately be secured consistent with the terms of the proposed ordinance,resulting in delays in resumption of refinery operations. Also, such unavailability in the event of any unanticipated outage or unscheduled maintenance-- whether or not in the context of a turnaround-- could significantly extend the shutdown period. These delays, in tum, would disrupt the supply of gasoline and diesel fuels to Northern California. The State of California requires unique fuel specifications for both gasoline and diesel in order to meet air quality standards. As a result, California relies upon only 13 in-state refineries to produce most of its gasoline and diesel. Contra Costa County's four refineries supply approximately one-third of the,gasoline and one-half of the diesel for the entire State of California. Delays in securing qualified labor could significantly hold up the return to service of these refineries after an unscheduled outage or other unanticipated event, causing statewide shortages of gasoline and diesel and higher Nel prices, Such shortages could,in turn, necessitate use of unreformulated fuels--resulting in adverse air quality impacts -- or importation of gasoline and diesel via truck from other states, with attendant risks of accident. uuI. ld� M2 j: iIVM b1NUKAM KUI�HtN WU NU, JOb N. 9/1J Michael Henn October 28, 2002 Page 8 Delays in maintenance and extended shutdowns of refinery units could also result one or more of the following significant environmental impacts: (1) belays in maintenance work could cause the refinery to run out of storage capacity for"residuals" (the heavier parts of the barrel of crude oil), making it necessary to transport the excess away from the plant, significantly increasing transportation risks and environmental hazards. B nghmm McCulehrn «P (2) Delay could preclude the refinery from restarting its process units, including those that are also Hazardous Waste Incinerators. The refinery would then have to transport the hazardous waste off-site for disposal, creating additional transportation and disposal hazards. (3) Delay that precluded the refinery from restarting units that produce low BTU gas units could cause an increase in emissions of oxides of nitrogen into the atmosphere. (4) If the refinery could not restart its acid regeneration facility on time, it would have to transport spent acids as far away as Southern California, again increasing transportation risks. (5) Delays in replacing catalysts in units that perform environmental functions (such as the sulfur recovery unit("SRU"')would require a shut down of all units connected to the SRU. The refinery operator would need to obtain a variance from the Bay Area Air Quality Management District to continue operating the unit until the maintenance work could be completed. During this period, there would be significantly increased emissions (up to many tons) of sulfur dioxide per day. (6)Unavailability of qualified labor could cause delays in implementation of projects undertaken to reduce potential safety risks or environmental impacts. Delay in implementing these projects would, in turn,delay the environmental protection these projects offer. These projects include the installation of an ammonia tank to reduce emissions of oxides of nitrogen(NOx); the installation of a new catalyst bed to reduce NOx; and the installation of equipment to reduce the risk of failure of other equipment as identified in an incident investigation following a fire or an explosion. UL 1, 10, LVVL 3: IL(IYI DINU n hJYI IYIULUi41`1CIV VY V INU, , qyo r~ IV/ 1) Michael Henn October 28, 2002 Page 9 3. The Proposed Ordinance's Reliance on the CAC Causes Further Concern By relying so heavily on CAC-approved programs as the benchmark for selection of qualifidd workers, the proposed ordinance raises additional concerns as well. The Department of Labor's Office of Apprenticeship, Training, Employer and Labor Services("OATELS") has initiated derecognition proceedings against the CAC. OATELS initiated these Bingham hhcCutchan LLP proceedings because it believes the CAC unlawfully limits its approval of 6;m9harnxom apprenticeship programs to one for every craft or trade per geographic area; unless there is a demonstrated need for an additional program. OATELS's finding that the CAC unlawfully restricts the number of approved apprenticeship programs confirms that the proposed ordinance,by confining the labor pool to CAC-approved apprenticeship programs, unduly limits the available labor pool for covered work on oil refineries. The derecognition proceeding instituted by the federal government injects a further element of confusion and uncertainty into the proposed ISO amendments. For example,what will happen to the ISO if the CAC is derecognized? Will the ordinance's provisions still require hiring of workers offormerly CAC-certified programs? Will further amendments to the ordinance be needed to clarify this, and how quickly are such amendments likely to occur? In the interim, will refineries and contractors be at risk of violation of the ordinance if they guess wrong about the impact of the derecognition? The lingering confusion and uncertainty surrounding the potential derecognition of the CAC and probable delays compound the safety and environmental concerns highlighted above. C. Conclusion There is substantial evidence supporting a fair argument that the proposed changes to the TSO may have a significant effect on the environment. Accordingly, the County may not rely on a negative declaration. Rather, to comply with CE.QA's requirements, it must prepare an EIR to evaluate the potential environmental impacts of this project. The failure to prepare an EIR. would constitute a prejudicial abuse of discretion under the statute. UUI. i�' 2UU1 J; LFM bINUHAM MCCUICHtN WC NU. j49d r llll5 Michael Henn October 28, 2002 Page 10 Thank you for your consideration of these comments, which, given the limited time available to us for review, are necessarily preliminary. Our review and investigation are ongoing and we plan to provide additional comments prior to or at the Board hearing on the proposed amendments.. Sincerely yours, "T�� Bin9 hc,m/ cCutchan LLP anfo M.C? S bingham.com UL I, L0. LVVL L L r m DIivunmm IVW1,VIW1L11 Irk IIV. 1L/ i1 9-IS-202 3: 1 SPM FROM JAY F I NKEL.MAN PHO 415 dos 919.3 P.2 ►Jay M. Finkelman, Ph.D., C.P.E. ' Industrial I Forensic Psychologist i 2200 Pacific'Avelnrle, Penthouse 12 D � San Francisco, California 94115-1433 i Telephone:(416) 409.9191 Facsimile: (418)409.9193 j• jfinkelmaai87st�ndspsirg.coai Vipiot m in lror"t FhyehWoU lryrhoin% /++nertranRe�rdatFrBiceriacrrl eyctru7n state otCautorn'�r t1i++erien 7 o1 Foreniie NsycWce!y Beate at New York September 16, 2002 Board of Supervisors Contra Costa County i 6511 Pine Street Martinez, California 94553 REi INDUSTRIAL.SAFETY ORDINANCE Proposed Amendment—Contractor Safety f Dilor Board Members: I have reviewed the County of Contra Costa's current industrial Safety Ordinance (Ord. No. 98-48),the proposed amendment regarding "Contractor Safett)r which would add a new Section 450.016(C)and relevant documents previously submitted into the administratPve record. I Qu� tom,iflcations I am an Industrial and Forensic Psychologist as well as a Certified Professional Ergonomist. I hold a Ph.D. in industrial l Organizational Psychology from New York University and an M.B.A. In Industrial Psychology from the Bernard M. ' Baruch School of Business of The City College of The City University of New York. Both my M.B.A. and Ph.D. dissertations entailed ergonomic and human Factors engineering research. I�dps a tenured full professor of Industrial Psychology at The City University of , eW York as well as Dean of Students at Baruch College. I also served on the Doctoral Faculty in Business, at the Graduate Center of the City University of New York. I : I ram a member of the Industrial Psychology and Engineering Psychology ' DIsions of the American Psychological Association, a member of the Human j " I. 1o, Luvz );11nvi 0111UnAM Ift4'UI1'nCIV vrU _ iuv, ��r7o t)i t) 9--16-202 3-16PM FROM JAY FINKELMAN PHD A16 409 9193 P.3 .i 't t Factors and Ergonomics Society and of the American Academy of Forensic Psychology. I was awarded a Diplomate from the American Board of Professional Psychology arjdifrom the American Board of Forensic Psychology where I am also a fellow. I arm � Certified Personnel Consultant from the National Association of Personnel ' Consultants and a Certified Employment Specialist from the California � Association of Personnel Consultants. I am a licensed psychologist in the State of Callfomia and in the State of New r York and listed in the National Register of Health Service Providers in Psychology. I aim a member of Psi Chi, delta Sigma Rho-- Tau Kappa Alpha and Beta Gamma Sigma, and received the Excellence In Teaching Award from the�Ity University of New York. No Justification for Limiting Al?groval Process to CAC There is no credible rationale that I can imagine, nor empldcal research that I have reviewed, that supports the utility of imposing a Callfomia Apprenticeship C60nctl ("CAC*) — or any proprietary and thus limiting —approval or training i reg orement on industrial contractors., from a safety and ergonomic perspective. , I There are typically multiple approaches and methodologies that can be utilized in the design of a credible and effective industrial safety program. There Is no basis to conclude that CAC-approved programs are superior to those mandated by current guidelines administered through contractors utilizing non- CAC approved training programs--and there Is some basis to conclude that they may be inferior. ft Is my understanding that according to Cal-OSHA data, trade union workers in the refinery building trades have nearly twice the job injuries as Ith'eir non-union colleagues (June 10, 2002 letter from George B. Smith, ARr ADIS, to Contra Costa County Hazardous Materials Commission). 9 While it is reasonable to impose minimum standards on the content of any safety program--and on the performance requirements of those successfully i corhpleting such a program—it Is not reasonable to artificially restrict who can ptoVide such training and aissessment, To do so may prove counterproductive to t th'ejsafety agenda by reducing the opportunities that workers have to obtain nedessary training and thus reducing the population of property trained and certified workers. ` r Need for Statistically Significant Justification of Restricted programs From a scientific safety perspective* it is Indefensible to Impose any requirement on a training or evaluation program that does not manifest a statistically sipg scant correlation with a reliable and valid criterion measure of safety. in othOr words, there is no empirical justification to require that anything be done. in UL I, zo, LUUL ; 11rial 6INUMhM WIW.UiLt1CIV -16- 3: 16PM FROM JAY FINKELMAN PHn ai5 A09 9193 P. a 1 • ,i the interest of safety, that does not have an actual demonstrable relationship to a C defensible measure of safety, The implication Is that unless there is a scientifically established relationship be4een completion of a CAC approved training process and increased safety or y r , Iced accidents—there Is no justification to impose such a requirement. In fact)such an artificial restriction Is far more likely to be counterproductive to a legitimate safety objective. _Reduction of Qualified Workforce Through AIRprenticeship Programs i N�t�surprisingly. the net effect of imposing workforce certification requirements that are unrelated to the ability to perform and,be qualified for a job assignment will only serve to unnecessarily reduce the available labor force. Whenever unnecessary requirements or thresholds are Introduced in order to (artificially) restrict access to employment opportunities—the results are never good. There is, of course, a legitimate use for certification and performance requirements for certain jobs—including certain refinery workers. However, this t( rationale should not be used to prejudicially restrict access to certification I pr�ergrams, To do so would violate fundamental fairness in the workplace—as well at eneraliy accepted human resource management practices. Adverse Impact Cyn Selection (2atios Te�hnically, anything that is clone to limit the population of available, similarly f ggalified workers, into a training or assessment program, serves to adversely inigease the selection ratio. This means that If fewer workers are permitted to enter the selection 'funnel" —a higher percentage of diose workers will have to be hired or assigned to most whatever job requirements they are being recruited to fulfill. r The math Is irrefutable. If an employer is forced to hire(or select) more of a given population of workers with specific skill requirements— it will inevitably be forced to dig deeper into the pool of applicants or prospects- This typically entails a r degradation of the�average skill level of the final workforce that Is selected.And ti!eeee is no credible gain to be derived from this restriction. In fact, only political agendas—. not safety agendas—are served by limiting access to qualified and effective training programs. No one has a monopoly on who may provide such essential programs.There Is certainly no evidence that contractors utilizing non-CAC approved training programs have less capability or r centive or experience in deyeloping and implementing these programs than r`<tractors utilizing CAC-approved programs. Any program or process that restricts access of potentially qualified workers will be detrimental to the qualification process and Is likely to impede overall safety at such a facility. 9-16-202 at 17PM FROM JAY F INK6LMAN P!-O AIS 409 9183 P.6 t Ladk of Empirical Research Justification � Alpyellminary review of the human factors and ergonomics literature also does not reveal any evidence or basis for assurning the superiority of a union based apprenticeship training program over an employer sponsored training program in ; assuring workplace safety, Thus, the proposed change is not defensible from an ;I emolrical perspective. ° r Sincerely, f µ J4yi M, Finkelman, Ph.D., C.P.5., t r r r t Y rt� .t • r t Craig F. Andersen " w r ,�+ C C'S T A I N. Lee Ormasa 02 STP 16 PH 4: 4 3 2 Andersen, Bonnifield&Cottle One Corporate CenterY.`tcHsrt;r crrs;. 3 1320 Willow Pass Road, Suite 500 4 Concord, California 94520 Telephone (925)602-1400 5 Facsimile (925) 825-0143 6 7 8 CONTRA COSTA COUNTY 9 COMMUNITY DEVELOPMENT DEPARTMENT 10 it 12 IN RE COUNTY FILE#CP02-03 13 PROPOSED CHANGES TO THE DECLARATION OF 14 INDUSTRIAL SAFETY ORDINANCE JOHN M. SAKAMOTO, P.E. 15 OPPOSING PROPOSED NEGATIVE DECLARATION 16 17 18 19 20 I, JOHN M. SAKAMOTO, declare: 21 1. I am a registered professional engineer licensed by the State of California and a 22 Senior Vice President with Eichleay Engineers Inc. of California with offices in Concord, 23 California. I have personal knowledge of the matters set forth herein and could and would 24 competently testify thereto if called upon as a witness. 25 2. Attached hereto as Exhibit "A" is a copy of my resume setting forth my relevant 26 qualifications and summarizing over twenty years of experience in petrochemical and heavy 27 28 1 1 industrial facilities, including management, design and construction of major industrial, 2 petrochemical and mining facilities. 3 3. I have been provided copies of the Notice of Public Review and Intent to Adopt a 4 Proposed Negative Declaration, County Pile#CP02-30, and related documents pertaining to 5 proposed changes to the Industrial Safety Ordinance of Contra Costa County. This declaration is G submitted in opposition to the proposed negative declaration because the Initial Study and Proposed 7 Negative Declaration fail to give due consideration to the possible adverse impacts of the proposed s changes regarding employee apprenticeship and training and are proposed without reference to any 9 supporting studies or data. 10 4. I am generally familiar with the requirements of the California Environmental 11 Quality Act ("CEQA") from my broad experience with the management, design and construction of 12 petrochemical facilities. 13 5. The Bay Area refinery contractor base is composed of union signatory and non- 14 signatory contractors. Implementation of the proposed changes without due consideration of their 15 environmental impact is of concern. The proposed changes requiring contractors to utilize only 16 workers who have completed certain apprenticeship programs approved by the California 17 Apprenticeship Council will disqualify a large portion of the labor base,placing capital projects, as 18 well as maintenance and repair projects, in jeopardy. 19 6. This reduction in the fundamental labor base may result in long term material 2a adverse impacts on the safe operation and maintenance of refineries. This includes increased risk of 2 t accidents resulting in environmental impacts. 22 7. There is no reference to studies or data which support the conclusions that these 23 changes will be beneficial rather than adverse. There is no documentation or study cited evaluating 24 apprenticeship programs and their correlation to refinery safety with regard to the risk of injury, 25 property damage or offsite chemical releases. 26 8. Without data correlating apprenticeship programs and refinery safety, the conclusion 27 that there is no adverse impact is unsupported. 28 2 t 9. Therefore, the effect of these changes needs to be addressed by a study made in 2 conjunction with an Environmental Impact Report under CEQA. These apprenticeship related 3 changes, as presently proposed, simply do not qualify under CEQA for a negative declaration. 4 1 declare under penalty of perjury that the foregoing is true and correct and that this s declaration was executed on April 16, 2002, at Concord,California. 6 7 John M. Sakamoto, P.E. s 9 10 I1 . 12 13 14 1s 16 17 18 19 20 21 22 23 24 2s 26 27 28 3 . John M. Sakemofo, r F Senior Vice Presidenf Over 20 years experience in Selected Representative Projects: petrochemical and heavy industrial Project Manager/Engineer for multiple petrochemical projects facilities. Has extensive experience in the involving all types of process operations, offplot support management,design,and construction of and auxiliary facilities including utilities and process control major industrial, petrochemical and systems. mining facilities. Projects have included Project Manager for a major redesign of a coker unit. facility expansions,crude units,catalytic crackers,cokers,vapor recovery, Project Manager t Engineer for multiple cogeneration porjects. tankage,waste water treatment, Project Manager/Engineer for crude unit debottlenecking and cogeneration, production facilities, expansion project. blending and shipping,and grass root Project Engineer for tank field expansion project. refineries. Responsibilities have included Design and construction management of a totally integrated process review,detail design,design and hydrocarbon waste water treatment facility. construction management.The size of projects has ranged from multiple small Design and construction management of a Octane additives design projects to large integrated design- plant. construct projects with a total constructed Design and construction of settling and filtration unit to support value over$125,000,000. design of an alternative fuels project. Design management of a marine terminal and tankage facility in Sudan. Experience Highlights: Management of multi-discipline design and design-build projects for the petro- Representative Clients: chemical,research, and process Chevron`Cexaco control industries. John is a recognized Exxon authority on vapor recovery facilities Ultramar Diamond Shamrock and risk analysis. Has in-depth Western States Petroleum Association(WSPA) knowledge of marine safety and Valero technology issues.Proficient in the Arco process review and design of USS-POSCO petrochemical and industrial facilities. CalTex Is adept in regulatory interpretation, Lawrence Berkeley National Laboratory(LBNL) permit reviews, regulatory advocacy, Stanford University and negotiation. In-depth knowledge Dow Chemical and experience in air emissions, Rhodia, inc. CEQA, RMP, Process Safety Education/Professional Affiliations: Management and California's CAL- ARP regulations. Has successfully Registered Professional Engineer-California negotiated numerous regulatory Western States Petroleum Association—President issues, permit applications and Contra Costa Council-Board Member Contra Costa County's Workforce Development Board— variance requests. Major emphasis on Board Member development and implementation of Eichleay's PRlSMProgram-Process Responsibility In Safety effective project management and Management-Author control systems including conceptual Eichleay's Spectrum Risk Management System—Author planning, permitting, estimating, Multiple Project Management Certifications scheduling, and construction CII`s Startup Planning Publication—Taskforce Member management. B.S. Engineering-University of Southern California i Elchleay L J Industrial Resume Craig F. Andersen ::, 1' A C 0; `f A 1 N. Lee Ormasa 2 Andersen, Bonnifield& Cottle 02 AFR 16 Pik 4: 4 3 One Corporate Center ft:l%i"NERT UIPT. 3 1320 Willow Pass Road, Suite 500 4 Concord, California 94520 Telephone (925)602-1400 5 Facsimile (925) 825-0143 6 7 8 9 CONTRA COSTA COUNTY to COMMUNITY DEVELOPMENT DEPARTMENT II 12 13 IN RE COUNTY FILE#CP02-03 14 15 PROPOSED CHANGES TO THE DECLARATION OF INDUSTRIAL SAFETY ORDINANCE DAVID GOLICK.IN OPPOSITION 16TO PROPOSED NEGATIVE 17 DECLARATION 18 19 H 20 I, David Golick, declare: 21 1. I have been a professional planner for 36 years. I have personal knowledge of the 22 matters set forth herein and could and would competently testify thereto if called upon as a witness 23 I have practiced city planning in Contra Costa County for 29 years. During that time period I was i 24 charge of the Planning Division for the City of Concord, the largest city in Contra Costa County, for 25 ten years. I was Senior Planner and Principal Planner for Concord for about 5 years. 26 2. During my career of 29 years in California, I have either prepared or reviewed 27 approximately 1,000 Initial Studies and Environmental Impact Reports. 28' r t 3. During the course of my career I have become familiar with and have an in-dept 2 working knowledge of the Califomia Environmental Quality Act Statutes and Guidelines. I have 3' coached subordinate employees regarding CEQA requirements and have addressed CEQA issues a 4 conferences of the California Chapter of the American Planning Association in Newport Beach an 5 Sacramento. 6 4. I have reviewed the Initial Study and Proposed Negative Declaration on the Propose 7 Changes to the Industrial Safety Ordinance which was prepared by the Contra Costa Count s Community Development Department and dated March 25, 2002. It is my opinion that this 9 document does not follow State requirements and draws conclusions which lack substance and are t o not based on presented factual evidence. >> 5. The Initial Study does not follow the process stated on page 4, titled CEQA Process 12 Page 4, paragraph 4 states, "Where beneficial impacts are likely, this initial study so indicates." 13 find no assessment of beneficial impacts in the initial study, so I assume that the proposed project 14 has no beneficial impacts. 15 6. Page 4, paragraph 5, line 7 states "...the analysis will determine whether the 16potential impacts would be positive or negative. If the impacts could be negative, the analysis 17, would then determine whether there is substantial evidence that a particular aspect of the project 18 may cause a substantial or potentially substantial adverse impact on the environment. Aspects o i9 the project that clearly could not cause a significant adverse impact will not be evaluated further." 20 The initial study does not contain an assessment, or even a list, of potential beneficial or adverse 21' impacts. Based on paragraph 4 and 5 of page 4, it could be concluded that the proposed project has 22 no beneficial nor adverse impacts. 23' 7. Recommendation 5 on page 6 addresses the potential"increase [to] the overall risk o 24 a Major Chemical Accident or Release so that all life-cycle implications of changing a process t 25 implement ISSs need to be carefully reviewed..." This issue is not addressed in the initial study. 26 8. On page 9, the description of Training and Apprenticeship Programs is substantive) 27 different from the proposed amendments. 28 2 1 9. The second paragraph under Training and Apprenticeship Programs lacks merit 2 There is no discussion of the impacts of the proposed changes. The paragraph states that the 3 proposed training program may be better than the existing one. The last sentence of the paragraph 4 mentions "improved training". There is no assessment presented which compares existing an 5 proposed training; no study was done to compare the results of the existing and proposed training G programs. 7 10. Page 9, Summary Conclusions, states, "County staff finds no substantial evidence o 8 potential significant impacts to the environment..." There is no basis for this conclusion. No data 9 is presented. No studies are addressed. 10 11. Page 10 offers a number of conclusions which have no basis in fact. The firs t paragraph states, "... these changes, in addition to being desirable in and of themselves, would have 12 no discernable adverse effect on the environment because they would add clearer safety revie 13 processes..." The second paragraph states, "The environmental effects of this change [Health 14 Services Department] would be modest but clearly beneficial." The environmental impacts of these 15 proposed changes are not studied and conclusions of studies are not presented in the initial study. tG There is no basis for the conclusions. 17 12. Page 1 of the Environmental Checklist Form, Environmental Factors Potential) 18 Affected, conflicts with the first 10 pages of the attached document, especially paragraph 4 and 5 0 ig page 4. Also, the purpose of this checklist is to list potentially significant impacts. It i 20 inconceivable to have one potential significant impact titled "No Significant Impacts Identified", a 21 appears on page 1. Finally, no impacts are checked, not even "No Significant Impacts Identified.' 22 Not checking any category only leads one to assume that this project has neither beneficial no 23 adverse impacts. Such a conclusion would contradict the County's own conclusions on page 9 an 24 10 of the attached study. 25 13. Based on the sources presented, the conclusion reached in answering the initial stud 26 questions are based on no research, technical reports, or studies done for this project. 27 2s 3 CEQA Guidelines, Section 15063 ($) "An initial study may rely upon expert opinio supported by facts, technical studies or other substantial evidence to document its findings. 2 3 14. Four sources are listed on page 3 of the checklist. No page numbers are offers 4 which is contrary to CEQA. 5 6 CEQA Guidelines, Section 15063 (d) (3) "...entries on a checklist...are [to be] brief! 7 explained to indicate that there is some evidence to support the entries. The brie 8 explanation may be either through a narrative or a reference to another information sours such as an attached map, photographs, or an earlier EIR or negative declaration. 9reference to another document should include, where appropriate, a citation to the page o 10 pages where the information is found." 11 15. The project description cannot be used as a source. A description is not an analytics 12 assessment from which a person can study and draw conclusions. 13 14 16. The explanations of the answers do not meet CEQA requirements. Preferably each 15 question, and definitely each topic area, must have an explanation of the environmental issues 16 environmental impacts and, if necessary, environmental mitigation measures. Only three plants are 17 affected by the proposed project, yet there are no site specific studies. 18 19 17. The sources cited to support the conclusion of"no impact"do not address the issues 20 For example, under I. Aesthetics, the cited source is the project description. The project descriptio 21 does not mention aesthetics. Aesthetics should address issues such as physical modifications whit 22 could affect aesthetic considerations, new sources of light or glare resulting from the project, site 23 23 near county or city designated scenic roads or vistas, etc. 25, 18. An air quality analysis should assess the range of possible changes that could b 26 forthcoming under the proposal and address passible air quality impacts. The assessment should 27 28 4 3 include impacts on the growing county population. The project description is erroneously used a z the citation,or rationale, for all"No Impact"answers. 3 19. The proposal has potential long-term detrimental impacts on IV. Biologica aResources, yet the project description is used as the citation for "No Impact" answers. There are 5 rare and endangered species near some of the industrial plants. Although the proposed regulation 6 7 can prolong the life of existing plants, there is no risk assessment regarding biological resources. 8 20. No assessment has been offered regarding V. Cultural Resources. Are any of the g industries near such resources? The project description should not be cited as a technical source o 10 information. 11 12 21. Many of the Summary statements, such as the one for VI Geology and Soils, are no 13 related to the questions asked on the checklist form. This section should address, among othe 14 topics, the location of fault traces relative to plant sites and whether implementation of the projec 15 would expose more people to geologic and soil impacts. 16 17 22. VII. Hazards and Hazardous Materials is a major topic of Countywide concern. Th 18 only citation for the "No Impact" answers is the project description. This section deserves 19 detailed, scientific study of the exposure of additional workers and the population at-large to then 20 hazards. 21 22 23. The Hydrology and Water Quality section, the Land Use and planning section, plus 23 the Noise section are based on no factual evidence. 24 24. Section XII Population and Housing does not address the fact that implementation o 25 the proposed project will require additional workers. Because of the lack of a sufficient supply o 26 27 skilled craftspeople in the County, workers will have to be brought here from other, unknow 28 places. There may be housing impacts and commute traffic impacts which should be addressed. 5 25. There is no discussion of issues under Mandatory Findings of Significance. Unde r 2 a), the initial study does not address the environmental setting of the three plants or any site specific 3 impacts. The initial study does not address habitats of rare and endangered species. The projec 4 does have the potential to degrade the quality of the environment and "Potentially Significan 5 Impact'should be checked. 6 7 26. Questions b) and c) of the Mandatory Findings of Significance should discuss the 8 impacts of more expensive fuels and resulting consequences. The number of available technics 9 people to implement the project may not be adequate. Safety impacts could result if there are no 10 enough qualified craftspeople. The project does have the potential to degrade the quality of the 11 12 environment and"Potentially Significant Impact"should be checked. 13 27. The initial study is based on no factual evidence, no specific studies, and no experl 14 opinions and analyses. I do not believe that the sources cited in the checklist support the conclusion 15 that the project will not have a significant environmental impact. Based on Section 15065 of the 16 17 Guidelines, an EIR should be required. 18 I declare under penalty of perjury under the laves of the State of California that the foregoing 19 is true and correct. 20 Executed this day of April, 2002 at Concord, California. 21 22 23 DAVID GOLICK 24 25 26 27 28 6 i 0-07-202 d:9FPM FRC7M JAY F 1 WEI_MAN PND 415 409 9193 P- 2 Jay M. Piankeiman, Ph.D., C.P.E. Industrial/Forensic Psycholo&t 2240 Pacific Avenue, Penthouse 12 n Baan Francisco, California 9411.5-1433 Telephone:(4115) 40 I7191 Facsimile-. (415)409.9198 Jfinkelntan@mindspring.com 141muate in For*"c PsYcholoo X.lconsed E'ayeholo iat Americsct 8oard,otProtevvional Psyehploa State of C.alifornis Amcrl"n Board of Foramic Paycholop+ Stnto of Now York October 7, 2002 Board of Supervisors Contra Costa County 451 Pine Street Martinez, California 94553 RE: INDUSTRIAL SAFETY ORDINANCE Building Trades' Proposed Amendment-•Contractor Safety Dear Board Members: I have reviewed the letter submitted by the economist James Rebitzer, Ph.D. on behalf of the union, Information submitted by Juliann Sum entitled "Causes of Underreporting of Job Injuries," a study by Contra Costa County of the past 27 major accidents and releases at Contra Costa refineries since the Inception of the ISO, County of Contra Costa's current Industrial Safety Ordinance (Ord. No. 93-48), the proposed amendment regarding "Contractor Safety" which would add a new Section 450.016(C) and relevant documents previously submitted into the administrative record. guailfications I am an Industrial and Forensic Psychologist as well as a Certified Professional Ergonomist. I hold a Ph.D. in Industrial/Organiz bona! Psychology from New York University and an M.B.A. In Industrial Psychoiogy from the Bernard M. Baruch School of Business of The City College of The City University of New York. Both my M_B.A. and Ph.D. dissertations entailed ergonomic and human factors engineering research. 1 was a tenured full professor of Industrial Psychology at The City University of New York as well as Bean of Students at Baruch College. I also served on the Doctoral Faculty In Business, at the Graduate Center of the City University of New York. 10/07/2002 MON 17:32 ITX/RX NO 82601 Qoo2 10-07-202 4:37PM FROM JAY FIWELMAN PFD 415 409 9193 P. 3 I am a member of the Industrial Psychology and Engineering Psychology Divisions of the American Psychological Association, a member of the Human Factors and Ergonomics Society and of the American Academy of Forensic Psychology. 1 was awarded a Diplomate from the American Board of Professional Psychology and from the American Berard of Forensic Psychology where I am also a fellow. I am a Certified Personnel Consultant from the National Association of Personnel Consultants and a Certified Employment Specialist from the California Association of Personnel Consultants. 1 am a licensed psychologist in the State of California and in the State of New York and listed In the National Register of Health Servk!9 Providers in Psychology. I am a member of Psi Chi, Delta Sigma Rho— Tau Kappa Alpha and Beta Gamma Sigma, and received the Excellence In Teaching Award from the City University of New York. I have been qualified as an expert In human resources and safety (ergonomics) =� and recently provided expert testimony In the proceedings surrounding the February 1999 Tosco Avon refinery incident. No Emnirica[gypDort for Union's Position Sup>porting Amendmt�nt to tn4ustrial Sal`aty Ordinance Nothing in the research cited by Dr. Rebitzer, nor any other research that I have been able to obtain, addresses the salient issue of the comparison of the effectiveness of contractor training verses mandatory apprenticeship training for workers at industrial chemical, petrochemical and oil Industry facilities—or for that matter, In any industrial setting. This Is the only significant issue that should be considered in deciding the merits of an amendment that will serve to Impose an arbitrary requirementrmpediment to effective training of Industrial workers. By restricting the availability of training— and thus trained workers—essentially only to union apprenticeship programs, the net effect is likely to be a reduction in the number of trained workers qualified to perform In the Industrial chemical, petrochemical and oil industries. And without any way to demonstrate the safety advantage of such a restriction. The inevitable result of a restricted workforce is an Increased demand for their services—which drives up wages. Obviously this is a useful agenda for the union, but it certainly does not appear likely to improve worker safety. There is no dispute that better industrial training--whoever does it—is correlated with Improved performance and reduced accidents. However, none of the research cited by Dr. Rebitzer, nor any compelling evidence in the record, addresses the 2 10107/2002 ICON 17:32 1TX/RX NO 82601 0003 10-07-202 d:38PM FROM JAY F I NKFl_MAN PHD 415 409 9193 P. 4 issue of safety with CAC-approved programs, as opposed to other contractor training. Dr. Rebitzer fails to explain or document how" economic theory, case studies, surveys and econometric analysis suggests that contractors have neither the appropriate incentives nor the technical expertise to provide adequate levels of safety training and safety supervision for their employees." 1 have not seen any such data —and Dr. Rebitzer does not supply it either. A contractor cannot defer supervision to a union under any circumstances--even if a union was willing to assume such responsibility. Realistically, a union would never wish to assume the workers compensation exposure and costs— In lieu of a contractor. And the amendment does not incorporate such a provision either. In essence the union would prefer to have full credit and control of the training process--but none of the responsibility, liability and cost associated with its actual implementation in industry. There is no disputing Dr. Rebitzer's conclusion that contract workers play an essential role in the economics of petrochemical plants and these plants cannot reasonably be expected to rely solely on regular employees for renovation and turnaround projects." Of course this `given" has no bearing on who should be responsible for--and who should be restricted from—training and supervising these contract workers. Though Dr. Rebitzer maintains that the contractors who hire and supervise contract workers employed at petrochemical plants have far fewer incentives to invest in safety than the host plant itself—he cannot support that claim. In fact the opposite is more likely to prove true.While Dr. Rebitzer correctly acknowledges that"injuries to Individual workers are costly to the contractor" he cannot justify the conclusion that the "hast plant' bears the brunt of contractor failure to make sufficient investment in safety training —and contractor error. If that conclusion was valid—there would not be a cost savings associated with the use of contractors--and they simply would not be used. In similar fashion, Dr. Rebitzer's analysis fails to acknowledge just how costly accidents are to contractors. They can make the difference between profitable operations and lasses—between staying in business and going out of business. In fact, it is a primary focus of all industrial staffing operations with which I have ever been associated —both as a line manager and as a consultant. The argument that"the insufficient Incentives to Invest in training may be compounded by a contractor's lack of familiarity with the technical details of the host plant's operation" Is, of course, equally applicable to a union apprenticeship program—even if there was evidence to support It to begin with. 3 10/07/2002 MON 17:32 [TX/RX NO 82601 Q004 10--07-202 4.38P'M FROM JAY FIWELMAN PHD 415 409 9193 P. 5 In fact, none of the studies that Dr. Rebitzer cites address the only relevant comparison of the relative safety associated with contractor training --as contrasted to union apprenticeship training. instead, they substitute the irrelevant comparison to host plant training --which is not at issue with respect to the proposed amendment. There is no evidence in the record to allow the Board to conclude that CAC- approved apprenticeship training is beneficial as opposed to ether training. There is no evidence of what the training consists of. There is no evidence that the CAC-approved programs involve specialty training for refinery-specific skills and safety. Without this and other information, you cannot make a conclusion that one program will be better than others. Underreporting of Job-LnAuries Is UnrelaAeAto Contractor status Despite the innuendo in a misleading presentation to the Contra Costa bard of Supervisors (9-17-02) about the causes of underreporting of job injuries, there is no credible evidence that contract employees are any less; Likely than an operator's full-time employees to report actual job injuries. In fact, an operator's =� full-time employees may have the most incentive to not alienate themselves from their main employers by filing costly claims against them. My 14 years of staffing industry experience suggests that bogus injury claims may be the issue most likely to be influenced by temporary verses full-time employees. W2 contract employees (such as the bulk of those at issue with respect to the proposed amendment) are likely to report claims at the same frequency as an operator's full-time employees. There is no empirical evidence to the contrary. The greater probability is that"protected" employees (such as those covered by the building trades' union) have fewer disincentives to file a bogus claim. Unless fraud can be proven, there is not much that can be done to such an employee. An extended "vacation with pay" can easily result from a non-existent injury by a dishonest worker. (This is not an accusation—only an obvious deduction.) A close examination of each of the points raised In the presentation reveals deceptively inappropriate and irrelevant comparisons—unrelated to the proposed amendment. For example, do we really need to care about the author's speculation as to whether workers in small companies or large companies have greater familiarity with the workers' compensation system? It is instructive that the 'Union Protection"portion of the presentation has a number of restrictive conditions--even if it did apply to the proposed amendment --which it does not. For example, it refers only to acflve unions, obfuscates the reporting of hazards with the reporting of injuries, restricts itself only to musculoskeletal disorders (rather than the more typical cuts and burns and tonic 4 10107/2002 NON 17.32 1TX/RX NO 82601 0005 10-07-202 d:39PM FROM JAY F 1 NKELMAN PFD 415 409 9193 P. 6 fume inhalations) and does not differentiate reporting of valid verses bogus injuries. Finally, the presentation fails to consider that contractors and operators have the same Incentive to protect their respective W2 employees from injury—to protect their workers' compensation mod rates —if not for obvious ethical reasons. The union, in contrast has no such financial incentive to encourage there to "do the right thing.' Intenlational Research Supports Contractor Position Boarding Industrial Safety Ordinanco A comprehensive analysis of employee-level and establishment-level data from a survey conducted by the Spanish Department of Labor addressed the universal concern about job safety and the rise In work Injuries. It is highly instructive with respect to the Industrial Safety Ordinance, because for the first time that I have been able to discover, it controls for critical °working conditions'variables before comparing accident rates between "temporary" and "permanent' workers. The analysis was published in the Industrial&Labor Relations Review,January 2002, Vol.55 Issue 2, pp. 262-285. Using an accepted statistical analysis to control for extraneous variables that would otherwise create misleading data (or at-best"error variance") the author was able to cut through the rhetoric and get to the basis of the determinants of work injuries. Not surprisingly, and consistent with a claim made by Spanish unions, the researcher found "the single most Important determinant of the likelihood of worts-related injury and illness Is working conditions, not education or tenure." However, quite contrary to the union's position regarding the Industrial Safety Ordinance, the researcher concluded that"although temporary worker's exhibit nigher work Injury and illness rates than permanent workers, they exhibit a lower likelihood of work injury and illness than permanent workers once the analysis controls for a given set of wonting conditions.' Let me emphasize that after proper analysis—the"temporary'workers actually experienced a superior safety record. The implication for the consideration of the proposed amendment Is clear. It does not matter who the workers are—or who trains them. Safe working conditions— coupled with effective training —will always be the key to true industrial safety and accident reduction. Empirical_EyIdenee Contrary to the Union's Position Regarding Indu9WM Safety Ordinance 5 10/07/2002 MON 17:32 [TX/RX NO 82601 Q 006 10-07-202 4.39PM FROM .JAY FINKELMAN PHD 415 409 9193 P. 7 The actual experience record, as reported In the study of the past 27 major accidents and releases at Contra Costa refineries since the inception of the ISO, empirically undermines the building trades' position - and their proposal for amending the ISO. A review of each of these accidents reveals that contractors were involved In only two of the 27 accidents and releases—but were not at fault In any of them—and did not cause any of them. This Is a rather extraordinary finding that is both statistically and conceptually significant. It is also not subject to interpretation by "interested' parties®the numbers speak for themselves. There is also not arr issue with respect to "extrapolating'accident data from situations that may not be representative of the circumstances that are applicable to the proposed amendment. The circumstances are precisely Identical because actual accidents In the same industries and geography are being considered. The only reasonable conclusion, that is supported by the data, Is that the contractors appear to work far more safely than the operators. One might conclude, only slightly facetiously, that the way to improve industrial safety Is to tum full responsibility over to the contractors--with their superb safety record. My conclusion from this study Is that, above all else, more training is needed -for and by - all operators. And such training probably has utility for all parties involved In potentially risky industrial operations. I would also propose that the training --and the results of the training—be evaluated through a program of performance evaluation and quality metrlcs..1 have set up and evaluated similar programs in the past--and they can be very.effective in enhancing safety and reducing accidents. leo Justification fof Limiting Approval Process to CAC There is no credible rationale that I can Imagine, nor empirical research that i have reviewed,that supports the utility of imposing a California Apprenticeship Council ("CAC") —or any proprietary and thus limiting —approval or training requirement on industrial contractors, from a safety and ergonomic perspective. There are typically multiple approaches and methodologies that can be utilized in the design of a credible and effective Industrial safety program. There is no basis to conclude that CAC-approved programs are superior to those mandated by current guidelines administered through contractors utilizing non- CAC approved training programs—and there Is some basis to conclude that they may be Inferior_ It Is my understanding that according to Cal-OSHA data, trade union workers in the rgftn$ry building trades have nearly twice the job Injuries as their non-union colleagues (June 10, 2042 letter from George B. Smith, ARCADIS, to Contra Costa County Hazardous Materials Commission). 6 10/07/2002 MON 17:32 1TX/R1 NO 82601 0 007 10-07-202 4:40PM FROM JAY F I WELMAN PHD 415 409 9193 P. 8 While It Is reasonable to impose minimum standards on the content of any safety program—and on the performance requirements of those successfully completing such a program— It Is not reasonable to artificially restrict who can provide such training and assessment. To do so may prove counterproductive to the safety agenda by reducing the opportunities that workers have to obtain necessary training —and thus reducing the population of properly trained and certified workers, Need for Statistically Significant Justification of Restricted Programs From a scientific safety perspective, It Is Indefensible to impose any requirement on a training or evaluation program that does not manifest a statistically significant correlation with a reliable and valid criterion measure of safety. In other words, there is no empirical justification to require that anything be done, In the interest of safety, that does not have an actual demonstrable relationship to a defensible measure of safety. The implication is that unless there is a scientifically established relationship between completion of a CAC approved training process and Increased safety or reduced accidents—there is no justification to Impose such a requirement. In fact, such an artificial restriction is far more likely to be counterproductive to a legitimate safety objective. Reduction of Qu�llfled Workforce Through Apprenticeship Programs Not surprisingly, the net effect of imposing workforce certification requirements that are unrelated to the ability to perform and be qualified for a job assignment will only serve to unnecessarily reduce the available labor force. Whenever unnecessary requirements or thresholds are introduced In order to (artificially) restrict access to employment opportunities—the-results are never good, There is, of course, a legitimate use for certification and performance requirements for certain jobs-- Including certain refinery workers. However, this rationale should not be used to prejudicially restrict access to certification programs. To do so would violate fundamental fairness in the workplace—as well as generally accepted human resource management practices, Adverse ImNgt On Selection Ratios Technically, anything that is done to limit the population of available, similarly qualified workers, into a training or assessment program, serves to adversely increase the selection ratio. This means that If fewer workers are permitted to enter the selection "funnel~—a higher percentage of those workers will have to 7 10/07/2002 MON 17:32 [TX/RX NO 82601 X 008 10--07-202 4=41PM FROM JAY FINKELMAN PHD 415 409 9193 P. 9 be hired or assigned to meet whatever job requirements they are being recruited to fulfill. The math is irrefutable_ If an employer is forced to hire (or select) more of a given population of workers with specific skill requirements— it will inevitably be forced to dig deeper into the pool of applicants or prospects. This typically entails a degradation of the average skill level of the final workforce that is selected. And there is no credible gain to be derived from this restriction. In fact, only political agendas--not safety agendas—are served by limiting access to qualified and effective training programs. No one has a monopoly on who may provide such essential programs. There is certainly no evidence that contractors utilizing non-CAC approved training programs have less capability or incentive or experience in developing and implementing these programs than contractors utilizing CAC-approved programs. Any program or process that restricts access of potentially qualified workers will be detrimental to the qualification process and is likely to Impede overall safety at such a facility. Lack of empirical Research Justification for Amendment =- A preliminary review of the human factors and ergonomics literature also does not reveal any evidence or basis for assuming the superiority of a union based apprenticeship training program over an employer sponsored training program in assuring workplace safety. Thus,the proposed amendment is not defensible from an empirical perspective.And there is direct credible evidence to the contrary—from the study of the past 27 major accidents and releases at Contra Costa refineries. However, additional training of all operators is probably appropriate. Sincerely, A1,,,hA. nkelman, Ph.D., C.P.E. 10/07/2002 MON 17.32 [TX/RX NO 82601 Q009 ARCADIS ARCADIS G&M,Inc. infrastructure, buildings, environment communications cations 1050 Marina"Way South Richmond California 94804 Tel SIO 233 3200 Contra Costa County Fax 510 233 3204 Hazardous Materials Commission www.arcadis-us.com 20 Allen Street Martinez,California 94553 Subject: ENVIRONMENT Re: Industrial Safety Ordinance Apprenticeship Training Amendments Dear Chairperson Stewart and Members of the Hazardous Materials Commission: Date: I work for A.12CADIS G&M,Inc., an engineering firm, which provides 10.lune 2002 environmental,health and safety services to the Bay Area refining community. Through many years of providing services to the refining industry, I know that safety Contact•. is a top priority in the refining business. George Smith I am writing to ask you to place safety;before politics and VOTE NO on the Phone: Contractor's Apprenticeship Training amendments to the Industrial Safety Ordinance 510-233-3200 proposed by the Contra Costa Building Trades. Email: The Building Trades' proposal requires a refinery worker to go through a State gbsm�th@arcadis-us°con' Apprenticeship Council-approved job-training program.The State Apprenticeship Council is dominated by the Building Trades,and therefore will only allow Trades union members to work in refineries. The refining community is very supportive of training in the areas of safety and refinery skills. However,based on Cal-OSHA data, there is no correlation between attending the Trades' apprenticeship program and an improved safety record. In fact, according to Cal-OSHA data, the refinery building trades workers have almost twice as many injuries as their non-trade counterparts. The refining community supports a four-point program to improve worker skills and refinery safety: I. All contract workers, building trades or merit shop, must graduate from a job training program which meets either state or national job training standards. 2. All contract workers must pass a stringent drug and alcohol test and will be subject to random testing. 3. All contract workers must pass a safety skills test in their crafts. 4. Each refinery must consider a contractor's safety record as criteria for employment. Fart o9 a bigger picture Contra Costa County ARCADIS .Tune 14,2442 Refineries must hire the most qualified,best trained workers available. They should not be forced to hire workers based on any other factors. To date,all of the subcommittees of the County's Hazardous Materials Commission and Public and Environmental Health Advisory Board have voted against the Building Trades' apprenticeship proposal. Please join us in saying NO TO POLITICS. VOTE NO on the Contractor's Apprenticeship Training amendments. Thank you for your consideration of my comments. Sincerely, .w George B. Smith Director of Energy Services ARCADIS G&M,Inc. CC: Contra Costa Board of Supervisors Contra Costa Planning Commission Page: oocumenti 2/2 � IK aJF1 � � • t t�'?ry�'rdi'��.. ! .idO ti t >t w T i '1 Lw�h�tift`{ 4 {{45 1{ w = c 4Oft, �1�1'i ;i�l h Itis ril ��;� N Y i r Al Gr � �AI •w 7 • { tf'�1 1�1 t� i�lttT,� « I r r.1,`31,Y1i�•�,tH�;i. W-j 09/28/02 12:07 FAX + AIYUCKa�IY nurYivvur > CL a . � C6 . Cb o o � 9.a00 5. 9. � U cr to ►»' ► IcIlb, c Poo c ; cco Cos Cl 09/28/2002 THU 13.02 [TX/RX NO 81891 1007 09/28/02 12:07 FAX "VhxbhN buINN wiuuo o e O o � ® ir ca s rE 0 g vas .� oa • C4s SP s— T n I C. Z CL C. co b � S v oc n CQ ►� a � o t 09/26/2002 THU 13:02 [TX/[1X NO 81891 [71008 Oa/Zb/UG 14:U! rA3 _ b ruvunnaciv vviri� ova d QQj R n ts Ct G ry py A W int 6o en r � g Z6 Er z co gLgyp • ,�+. 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C _ M c xa ' to CA 0 $ t:x . ; cl 09/20!2002 THU 13:02 (TX/RX N4 81891 0 013 09/28/02 12:08 FAX + ANUEKSWN bU N Wiuty 3 CPU cz X. ejig 90 pa 0 r-r 100 oa s- `° N 09/26/2002 THU 13:02 [TX/RX NO 81891 IZ014 ORA26102 12:08 FAX y ANVhXbbn bUAA wiu15 la .jC-W ;Fin ajewtkr Z „t/►,� � Aga d rs co 0 4 co �' A tv � 09/26/2002 THU 13:02 fTX/RX NO 81891 21015 ' Work stoppages involving 1J000 workers or more, �- l�47~���� � �elof2 - ^ ZZ Tof Labor ca ton,D.0 20212 BLS Home / Programs & Survevs l Cet Detailed Statis6cs |�qlqssumu I W±ufs NewiI�i Lit! I� DOL CRAJRoMnjeIOTHER AVAILABLE ECONOMIC NEWS RELEASES Work stoppages involving 1,000 workers or 00oreF 1947-2001 Table I. Work stoppages involving I°OOO workers or more, 1947-2001 | Stoppages 1/ | Days idle 1/ ( Year | Workers | i Percent of lNumber I involved | Number / estimated } / (tbouoaody) | (tbouaaodm) | working | | | | time 2/ I950 . . . . . . . , . . , . . . , . . . . , . , ( 424 / 1, 698 | 30,390 1 . 26 1951 . . . ^ . . . . . . . . ^ , , . . . . . . . } 415 | 1,462 | 15,070 | .12 | | | | 1952 . . , , , . . . . , , . . . ' - ^ ' , . . , | 470 | 2,746 | 48,820 | ,38 1953 . . . . . . . . . . , ^ , ~ ` . . , . , ~ , } 437 | 1,623 | 18, 130 | .14 1954 , . , . . , . . , . , . ^ ^ , , , . . ' ' . | 265 | 1,075 } 16, 630 1 -13 1955 . ' . . . - . . , . , . . ^ ' , . ' . , . . 1 363 / 2,055 1 21,I80 / .I5 1956 . , ' . ' - . ' . ^ ' ' ^ . . ' . . . , , . } 287 | 1,370 | 26,840 | ,20 | | | { 1957 . . . ^ . , ^ , . - , ^ , . ` ^ . , . ^ . . | 273 { 887 | I0,340 / .07 I958 . . . . . , . , . , . . . , ^ . . . . , ' ' | 332 / 1,587 | 17,300 | .13 1959 . . . . . . . . . , ~ ^ . , . . , . . . , , | 245 { 1,38I | 60,850 | .43 1960 . . , . . - . , . . . . , . , ' . ^ . , ^ ^ | 322 | 896 | 13,260 1 .09 1961 , . . . . . . . , . , ^ , . . ~ , . . . ^ ^ | 195 | 1,031 | 10,140 1 .07 | | | | 1962 . . . . , , . , , . . , . . . . , ' , ' . , / 2I1 / 793 | I1,760 | .88 1963 . . . . . . . , ^ ^ , , , ^ ~ . . , ^ . ` , } 181 | 512 / 10,020 ! .07 1964 - , . . . , . , . ' ^ . ^ ^ . ^ . ^ ~ - ~ , | 246 | 1/183 | 16,220 1 .II 1965 , . . . . . ^ . . . . . . . . . . . , , ' ^ | 268~ | 999 | 15,i4O | .10 1966 . . . . . , . . , , , . , ^ ^ ^ . ^ . . . . | 321 / I,300 1 16,000 [ .IU I / | / 1967 . . . . . ^ . ' ^ ^ , , . ^ . ^ . , ^ , . . | 381 | 3,192 / 31,320 | ,I8 I988 , . . , . , . . . . , . . ^ . . . . ^ . , ~ | 892 | 1/855 | 35,367 | .20 1969 . . . . . , . . , ^ ' . , . . . . . . . . ^ | 413 | 1,576 | 29,397 | .16 1970 . . . . , . . . . , ' ^ . . ^ ' ^ . . . ^ . | 381 | 2,468 / 52,761 | .29 1971 . . . , . ' . ^ , , ' . ' , , , ^ ' . , , ' | 298 | 2,516 | 35,538 | .I9 | | | | 1972 - . ' ^ . , . , ^ ^ , . . . . - ^ . . . . . | 250 / 975 ( 16,764 | .09 1975 . ' . ' . ' . , , ^ , ^ , . , ^ , ' . ' - . | 317 | 1,400 | 16,260 | .08 1974 , ^ . , ~ ' ' . ^ . ' . . . ^ . . ' ^ ' . . | 424 | 1,796 | 3I^809 | .I6 1975 . . . . . . ' . . ^ , . . . ^ . . . . . , . | 235 ) 965 | 17,563 | ,Dg 1976 . , . . , ' , . . . . . . ' . . ^ ^ . . . . | 231 | 1,519 } 23, 962 { '12 �� _-r:Ystuts.blm gO`/nevvs.rel ,1Ol]dm 9/26/02 Work stoppages involving 1,000 workers or more, 1947-2001 Page 2 of 2 1977 . . . . . . . . . . . . . . . . . . . . . . 1 298 ► 1,212 1 21,258 1 .10 1978 . . . . . . . . . . . . . . . . . . . . . . 1 219 ► 1,006 1 23,774 1 .11 1979 . . . . . . . . . . . . . . . . . . . . . . 1 235 1 1,021 1 20, 409 1 .09 1980 . . . . . . . . . . . . . . . . . . . . . . I 187 1 795 1 20,844 1 .09 1981 . . . . . . . . . . . . . . . . . . . . . . 1 145 1 729 1 16, 908 1 .07 1 1 1 1 1982 . . . . . . . . . . . . . . . . . . . . . . 1 96 1 656 I 9,061 1 .04 1983 . . . . . . . . . . . . . . . . . . . . . . I 81 1 909 1 17, 461 1 .08 1984 . . . . . . . . . . . . . . . . . . . . . . 1 62 1 376 1 8, 499 1 .04 1985 . . . . . . . . . . . . . . . . . . . . . . 1 54 ► 324 1 7,079 1 .03 1986 . . . . . . . . . . . . . . . . . . . . . . 1 69 ► 533 1 11,861 I .05 1 I I i 1987 . . . . . . . . . . . . . . . . . . . . . . 1 46 1 174 1 4,481 1 .02 1988 . . . . . . . . . . . . . . . . . . . . . . 1 40 1 118 I 4,381 1 .02 1989 . . . . . . . . . . . . . . . . . . . . . . I 51 1 452 1 16, 996 1 .07 1990 . . . . . . . . . . . . . . . . . . . . . . 1 44 ► 185 1 5, 926 ► .02 1991 . . . . . . . . . . . . . . . . . . . . . . 1 40 ► 392 1 4,584 1 .02 I I I I 1992 . . . . . . . . . . . . . . . . . . . . . . 1 35 ► 364 1 3, 989 ► .01 1993 . . . . . . . . . . . . . . . . . . . . . . 1 35 1 182 1 3, 981 1 .01 1994 . . . . . . . . . . . . . . . . . . . . . . 1 45 1 322 1 5,020 1 .02 1995 . . . . . . . . . . . . . . . . . . . . . . 1 31 1 192 1 5,771 1 .02 1996 . . . . . . . . . . . . . . . . . . . . . . I 37 1 273 1 4,889 1 .02 1 1 1 1 1997 . . . . . . . . . . . . . . . . . . . . . . 1 29 1 339 1 4,497 1 .01 1998 . . . . . . . . . . . . . . . . . . . . . . 1 34 1 387 1 5,116 1 .02 1999 . . . . . . . . . . . . . . . . . . . . . . 1 17 1 73 ► 1, 996 ► .01 2000 . . . . . . . . . . . . . . . . . . . . . . 1 39 1 394 1 20,419 1 .06 2001 . . . . . . . . . . . . . . . . . . . . . . 1 29 1 99 1 1, 151 1 (4) 1/ The number of stoppages and more than one stoppage during workers relate to stoppages that the year. began in the year. Days of 2/ Working time is for all idleness include all stoppages in employees, except those in private effect. Workers are counted more households, forestry, and fisheries. than once if they are involved in 3/ Not available. 4/ Less than .005 percent. Table of Contents Back to Ton www.dol.go 09 Frequently Asked Questions I Freedom of Information Act ( Customer Survey Privacy &Security Statement I Linkincl to Our Site I Accessibility Information U.S. Bureau of Labor Statistics URL: httP:llwww.bis.gdv/CBA Office of Compensation and Working Conditions Phone: (202) 691-6284 or 6275 2 Massachusetts Avenue, N6 Suite-4175 Pax: (202) 691-6647 Washington, DC 20212-0001 CBA data questions:cbainfoobis.+aov Technical(web)questions:Webrmasterpbis,00v Other comments:feedback0bis.gov http://stats.bls.gov/news.release/wkstp.tOl.htm 9/26/02 111impop > 1 g .. till 6 b cr+ w m v vii ' p G'Ti `�J._..�•V-i-.,� M•% W o N�G•�it�{h Gn W 6�Ga 09 W 19'f -�+V��O ,B.,R N ti�i L5 O `O O GT,1 CS G'Y'M G7S N XLS} .p G!t f7?.V V W V G7�[76 OD(�J1 NfNi9 5D GJ t)1 tNJ YwJ A W w cn ro pro - � ® � st 2 d V � q A.I GJt-Nw pp V Gay OG�9N N tb..+ �4NS Q9 tH>"Ni ti'r b.C�f,aO i. C�'r 47 Cfl N0� V La GJ �. � � � �, p �.� �� �` �. �.� :$� ..� ��'. ���� � , N N �� � ��r � O'�j W � � i •hrx��t� y, j U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD r }�•fit,}:p 1 INVESTIGATION REPORT REFINERY FIRE INCIDENT (4 Dead, I Critically Injured) S��5 z : kt'r TOSCO AVON REFINERY MARTINEZ, CALIFORNIA FEBRUARY 23, 1999 KEY ISSUES: ■ CONTROL OF HAZARDOUS NONROUTINE MAINTENANCE ■ MANAGEMENT OVERSIGHT AND ACCOUNTABILITY ■ MANAGEMENT OF CHANCE ■ CORROSION CONTROL REPORT No. 99.014.1-CA ISSUE DATE: MARCH 2001 U.S. CHEMICAL SAFM AND FiAZARD INVESTIGATION BOARD Office of Investigations and Safety programs 2175 K Street,NW,Suite 400 Washington,DC 20037 (202)261-7600 U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD INVESTIGATION REPORT REFINERY FIRE INCIDENT (4 Dead, 1 Critically Injured) TOSCO AVON REFINERY MARTINEZ,CALIFORNIA FEBRUARY 23, 1999 KEY ISSUES CONTROL OF HA7ARDOus NONROUTINE MAINTENANCE MANAGEMENT OVERSIGHT AND ACCOUNTABILITY MANAGEMENT OF CHANGE CORROSION CONTROL REPORT No. 99-014.1-CA ISSUE DATE: MARCH 2001 Abstract his investigation report examines the refinery fire incident that occurred on February 23, 1999, in the crude unit at the Tosco Corporation Avon refinery in Martinez, California. Four workers were killed, and one was critically injured. This report identifies the root and contributing causes of the incident and makes recommendations for control of hazardous nonroutine maintenance, management oversight and accountability, management of change,and corrosion control. The U.S. Chemical Safety and Hazard Investigation Board (CSB)is an independent Federal agency whose mission is to ensure the safety of workers and the public by preventing or minimizing the effects of chemical incidents. CSB is a scientific investigative organization; it is not an enforcement or regulatory body. Established by the Clean Air Act Amendments of 1990, CSB is responsible for determining the root and contributing causes of accidents, issuing safety recommendations, studying chemical safety issues, and evaluating the effectiveness of other government agencies involved in chemical safety. No part of the conclusions, findings, or recommendations of CSB relating to any chemical incident may be admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in an investigation report(see 42 U.S.C. § 7412(r)(6)(G)). CSB makes public its actions and decisions through investigation reports, summary reports, safety bulletins, safety recommendations, special technical publications, and statistical reviews. More information about CSB may be found on the World Wide Web at httpV/www.chemsafety.gov. Salus Populi Est Lex Suprema People's Safety is the Highest Law 3 Contents EXECUTIVE SUMMARY............ ....................................................9 1.0 INTRODUCTION................................................................ 17 1.1 Background............................................................................. 17 1.2 Investigative Process................................................................ 17 1.3 Tosco Avon Oil Refinery Facility.............. .............................. 18 1.4 Crude Fractionator and Naphtha System .............................. 18 1.4.1 Fractionator................................................................ 18 1.4.2 Naphtha System ......................................................... 19 2.0 DESCRIPTION OF INCIDENT.......................................... 21 2.1 Pre-Incident Events.............................................................I... 21 2.1.1 Detection of Naphtha Piping Leak ............................. 21 2.1.2 Emergency Response and Inspection ......................... 21 2.1.3 Recurrence of Leak..................................................... 23 2.1.4 Efforts to Drain and Replace Piping............................ 24 2.2 The Incident........................................................................... 26 2.2.1 Job Preparation .......................................................... 26 2.2.2 First Cut and Second Cut .......................................... 27 2.2.3 Naphtha Release ........................................................ 28 2.3 Autoignition ............................................................................ 29 2.4 Emergency Response.............................................................. 29 3.0 ANALYSIS OF INCIDENT................................................... 31 3.1 Hazardous Nonroutine Maintenance.................................... 31 3.2 Job Planning....... ................................................................... 32 3.3 Hazard Identification and Evaluation..................................... 34 3.3.1 Job-Specific Hazards ................................................. 34 3.3.1.1 Inability to Isolate ......................................... 34 3.3.1.2 Inability to Drain........................................... 35 3.3.1.3 Other Hazards............................................. 37 3.3.2 Good Practice Guidelines for Maintenance Work ..... 37 3.3.3 British Petroleum Grangemouth Incident .................... 39 3.4 Unit Shutdown Decision Making ........................................... 39 3.5 Management Oversight.......................................................... 40 3.5.1 Accountability for Hazardous Work........................... 40 3.5.2 Supervision of Job Execution..................................... 41 3.5.3 Stop Work Authority .................................................. 43 3.5.4 Auditing ...................................................................... 44 5 Contents (confd) 3.6 Permit System and Line Breaking Procedure........................... 45 3.6.1 Permit and Procedure Deficiencies.............................. 45 3.6.1.1 Inability to Follow Procedures...................... 46 3.6.1.2 Identification of Specific Hazards................ 46 3.6.2 Deviations From Good Practice.................................. 47 3.7 Corrosion Control and Mechanical Integrity ......................... 48 3.7.1 Desalter Performance.................................................. 48 3.7.2 Corrosion.................................................................... 49 3.8 Management of Change......................................................... 51 4.0 ROOT AND CONTRIBUTING CAUSES........................... 53 4.1 Root Causes ........................................................................... 53 4.2 Contributing Causes............................................................... 54 5.0 RECOMMENDATIONS ...................................................... 55 6.0 REFERENCES ...................................................................... 57 APPENDIX A: Incident Timeline................................................. 59 APPENDIX B: Logic Tree Diagram ............................................. 67 APPENDIX C: Executive Summary of The Hendrix Group, Inc.. Report............................................. 69 6 Figures I Naphtha Stripper Level Control Valve (LCV) Manifold Removed to Ground Level........................................20 2 Fractionator and Naphtha Draw, Simplified Diagram at Time of Initial Leak ..............................................................22 3 Closeup of Material Blockage of Block Valve (C), Upstreamof LCV-150................ ..................... ............... .......24 4 Fractionator and Naphtha Draw, Simplified Diagram, Draining at Lower Flange at Time of Release ..........................25 5 Closeup of Stem of Block Valve(C), Upstream of LCV,150, With the Valve Wheel Fully Tightened...................................26 6 Fractionator and Naphtha Draw, Simplified Diagram, First Cut and Second Cut ...................................................... 27 7 Leak Test of the Naphtha Stripper Level Control Bypass Valve (B) in the Closed Position, Showing Significant Water Flow........................................... 50 7 Acronyms and Abbreviations AIChE American Institute of Chemical Engineers API American Petroleum Institute CaVOSHA California Department of Industrial Relations, Division of(Occupational Safety and Health CCPS Center for Chemical Process Safety CFR Code of Federal Regulations CSB U.S. Chemical Safety and Hazard Investigation Board EPA U.S. Environmental Protection Agency OF Degrees Fahrenheit HAZOP Hazard and operability HSE Health and Safety Executive (United Kingdom) ICE Institution of Chemical Engineers (United Kingdom) LCV Level control valve MOC Management of change MSDS Material Safety Data Sheet NFPA National Fire Protection Association NPRA National Petrochemical & Refiners Association NTIS National Technical Information Service NTSB National Transportation Safety Board OSHA {Occupational Safety and Health Administration PACE Paper, Allied-Industrial, Chemical & Energy Workers International Union psig Pounds per square inch gage PPE Personal protective equipment PSM Process safety management SCBA Self-contained breathing apparatus UDS Ultramar Diamond Shamrock Corporation U.S.C. United States Code 8 Executive Summary 0n February 23, 1999, a fire occurred in the crude unit at Tosco ES.1 Introduction Corporation's Avon oil refinery in Martinez, California. Work- ers were attempting to replace piping attached to a 150-foot-tall fractionator' tower while the process unit was in operation. During removal of the piping, naphtha? was released onto the hot fraction- ator and ignited. The flames engulfed five workers located at differ- ent heights on the tower. Four men were killed, and one sustained serious injuries. Ultramar Diamond Shamrock Corporation (UDS) purchased the facility in September 2000 and renamed it the Golden Eagle refinery. Because of the serious nature of this incident, and the fact that another fatality had occurred at the Avon facility in 1997, the U.S. Chemical Safety and Hazard Investigation Board (CSB) initiated an investigation to determine the root and contributing causes of the incident and to issue recommendations to help prevent similar occur- rences. ES.2 Incident On February 10, 1999, a pinhole leak was discovered in the crude unit on the inside of the top elbow of the naphtha piping, near where it was attached to the fractionator at 112 feet above grade.3 Tosco personnel responded immediately, closing four valves in an attempt to isolate the piping. The unit remained in operation. Subsequent inspection of the naphtha piping showed that it was extensively thinned and corroded. A decision was made to replace a large section of the naphtha line.' Over the 13 days between the discovery of the leak and the fire, workers made numerous A fractionator is an oil refinery processing vessel that separates preheated hydrocar. bon mixtures into various components based on boiling point. The separated components are referred to as fractions or cuts. Inside the fractionator,some trays draw off the fractions as liquid hydrocarbon products(such as naphtha),and piping transports them to storage or for further processing. t Petroleum naphtha is a highly flammable mixture of liquid hydrocarbons drawn off as a cut from the fractionator tower. 3 Above grade"refers to the vertical distance from ground level at the point upon which equipment rests. "The term"naphtha line"is synonymous with naphtha piping. 'Naphtha draw line' was also used at the facility to refer to the naphtha piping. The draw line takes or "draws"naphtha product from the 38th tray of the fractionator,where it flows through a level control valve to the naphtha stripper vessel. 9 unsuccessful attempts to isolate and drain the naphtha piping. The pinhole leak reoccurred three times, and the isolation valves were retightened in unsuccessful efforts to isolate the piping. Nonetheless, Tosco supervisors proceeded with scheduling the line replacement while the unit was in operation. On the day of the incident, the piping contained approximately 90 gallons of naphtha, which was being pressurized from the running process unit through a leaking isolation valve. A work permit author- ized maintenance employees to drain and remove the piping. After several unsuccessful attempts to drain the line, a Tosco maintenance supervisor directed workers to make two cuts into the piping using a pneumatic saw.' After a second cut began to leak naphtha, the supervisor directed the workers to open a flange6 to drain the line. As the line was being drained, naphtha was suddenly released from the open end of the piping that had been cut first. The naphtha ignited, most likely from contacting the nearby hot surfaces of the fractionator, and quickly engulfed the tower structure and personnel. ES.3 Key Findings 1. The removal of the naphtha piping with the process unit in operation involved significant hazards. This nonroutine'work required removing 100 feet of 6-inch pipe containing naphtha, a highly flammable liquid. Workers conducting the removal were positioned as high as 112 feet above ground,with limited means of escape. The hot process unit provided multiple sources of ignition,some as close as 3 feet from the pipe removal work. One The hot process unit provided multiple isolation valve could not be fully closed,which indicated possible sources of ignition, some as close as plugging. 3 feet from the pipe removal work. On three occasions prior to the incident, the naphtha pipe resumed leaking from the original pinhole and felt warm to the s A pneumatic saw is a cutting device that is energized by air pressure rather than electrical energy. 'A flange is a rim on the end of a section of piping or equipment used for attachment to other piping and equipment. 'The Center for Chemical Process Safety(CCPS)defines"nonroutine work"as unscheduled maintenance work that necessitates immediate repair and may introduce additional hazards(CCPS, 19956;p.212). One example is"breakdown maintenance," where equipment is operated until it fails. In this incident,the February 10 naphtha draw line leak is an example of breakdown maintenance. 10 touch, indicating that one or more isolation valves were leaking. Numerous attempts to drain the piping were unsuccessful; a failed attempt to ream out the drain lines and the removal of a small section of pipe confirmed that the line was extensively plugged. On seven occasions, the downstream naphtha stripper vessel filled--indicating probable isolation valve leakage. 2. The naphtha pipe that was cut open during the repair work was known by workers and the maintenance supervisor to contain flammable liquid. Although Tosco procedures required piping to be drained, depressured, and flushed prior to open- ing,' this was not accomplished because extensive plugging prevented removal of the naphtha. The procedures did not specify an alternative course of action if safety preconditions, such as draining, could not be met. Although the hot process equipment was close to the removal work, Tosco's procedures and safe work permit did not identify ignition sources as a Despite serious hazards caused potential hazard. The permit also failed to identify the presence by the inability to drain and isolate of hazardous amounts of benzene in the naphtha. the line—known to supervisors and 3. The naphtha stripper vessel level control bypass valve was workers during the week prior to the leaking,which prevented isolation of the line from the operating incident—the low risk classification process unit. As a result,the running unit pressurized the naphtha was not reevaluated, nor did piping. Excessive levels of corrosive material and water in the management formulate a plan to naphtha line and operation of the bypass valve in the partially control the known hazards. open position fbr prolonged periods led to erosion/corrosion of the valve seat and disk. Excessive levels of corrosives and water also produced plugging in the piping and led to the initial leak. 4. Tosco's job planning procedures did not require a formal evalua- tion of the hazards of replacing the naphtha piping. The pipe repair work was classified as low risk maintenance. Despite serious hazards caused by the inability to drain and isolate the line—known to supervisors and workers during the week prior to the incident—the low risk classification was not reevaluated, nor did management formulate a plan to control the known hazards. 5. Tosco's permit for the hazardous nonroutine work was authorized solely by a unit operator on the day of the incident. Operations a Tosco Avon Safety Procedure S-5,Safety Orders,Departmental Safe Work Permits, October 19, 1998. 11 supervisors were not involved in inspecting the job site or reviewing the permit. 6. Operations supervisors and refinery safety personnel were seldom present in the unit to oversee work activities. On the morning of the incident, prior to the fire, one operations supery"t- sor briefly visited the unit, but he did not oversee the work in progress and no safety personnel visited the unit. The mainte- nance supervisor was the only management representative present during the piping removal work. The U.S. Environmental Protection Agency (EPA) similarly determined that a lack of operations supervisory oversight during safety critical activities was one of the causes of a previous Avon In the 3 years prior to the incident, refinery incident, a 1997 explosion and fire at the hydrocracker, neither Tosco's corporate safety which resulted in one fatality(USEPA, 1998; pp.viii, 65).9 group nor Avon facility management 7. In the 3 years prior to the incident, neither Tosco's corporate conducted documented audits safety group nor Avon facility management conducted docu- of the refinery's fine breaking, mented audits of the refinery's line breaking,10 lockout/tagout,"or lockoutJtagout,or blinding blinding12 procedures and practices. procedures and practices. 8. Tosco did not perform a management of change (MOC)13 review to examine potential hazards related to process changes, including operating the crude desalter14 beyond its design parameters, excessive water in the crude feedstock,'5 and 9 The EPA report states: "Supervision was not present at the unit even though there had been a succession of operating problems just prior to the final temperature excursion that led to the explosion and fire." 10"Line breaking"refers to equipment opening. " "Lockourhagout"refers to a program to control hazardous energy during the servicing and maintenance of machinery and equipment. Lockout refers to the placement of a locking mechanism on an energy-isolating device,such as a valve,so that the equipment cannot be operated until the mechanism is removed. Tagout refers to the secure placement of a tag on an energy-isolating device to'indicate that the equipment cannot be operated until the tag is removed. 12 A blind is a piping component consisting of a solid metal plate inserted to secure isolation. 11 Management of change is a systematic method for reviewing the safety implications of modifications to process facilities,process material,organizations,and standard operating practices. '{The desalter vessel removes inorganic salts,water,and suspended solids to reduce corrosion,plugging,and fouling of piping and equipment. '$Feedstock is material of varying constituents that is processed in a refinery. 12 prolonged operation of the bypass valve in the partially open position. Tosco memos and incident reports revealed that management recognized these operational problems and the increased rate of corrosion. However, corrective actions were not implemented in time to prevent plugging and excessive corrosion in the naphtha piping. ESA Root Causes I. Tosco Avon refinery's maintenance management system did not recognize or control serious hazards posed by performing nonroutine repair work while the crude processing unit remained in operation. ■ Tosco Avon management did not recognize the hazards presented by sources of ignition, valve leakage, line plugging, The involvement of a multidisciplinary and inability to drain the naphtha piping. Management did not team in job planning and execution, conduct a hazard evaluation 16 of the piping repair during the along with the participation of higher job planning stage. This allowed the execution of the job level management, would have likely without proper control of hazards. ensured that the process unit was shut down to safely make repairs once it was r Management did not have a planning and authorization known that the naphtha piping could process to ensure that the job received appropriate manage not be drained or isolated. meat and safety personnel review and approval. The involve- ment of a multidisciplinary team in job planning and execution, along with the participation of higher level management, would have likely ensured that the process unit was shut down to safely make repairs once it was known that the naphtha piping could not be drained or isolated. • Tosco did not ensure that supervisory and safety personnel maintained a sufficient presence in the unit during the execu- 'Tosco's reliance on individual workers tion of this job. Tosco's reliance on individual workers to detect to detect and stop unsafe work was an and stop unsafe work was an ineffective substitute for man- ineffective substitute for management agement oversight of hazardous work activities. oversight ofhazardous work activities. • Tosco's procedures and work permit program did not require that sources of ignition be controlled prior to opening equip- ment that might contain flammables, nor did it specify what A hazard evaluation is a formal analytical tool used to identify and examine potential hazards connected with a process or activity(CCAS, 1992;p.7). 13 actions should be taken when safety requirements such as draining could not be accomplished. 2. Tosco's safety management oversight system did not detect or correct serious deficiencies in the execution of maintenance and review of process changes at its Avon refinery. Neither the parent Tosco Corporation nor the Avon facility management audited the refinery's line breaking, lockoutftagout, or blinding procedures in the 3 years prior to the incident. Peri- odic audits would have likely detected and corrected the pattern of serious deviations from safe work practices governing repair work and operational changes in process units. These deviations included practices such as: ■ Opening of piping containing flammable liquids prior to draining. • Transfer of flammable liquids to open containers. ■ Inconsistent use of blind lists. • Lack of supervisory oversight of hazardous work activities. • Inconsistent use of MOC reviews for process changes. ES.S Contributing 1. Tosco Avon refinery management did not conduct an MOC Causes review of operational changes that led to excessive corrosion rates in the naphtha piping. Management did not consider the safety implications of process changes prior to their implementation, such as: ■ Running the crude desalter beyond its design parameters. ■ Excessive water in the crude feed. • Prolonged operation of the naphtha stripper level control bypass valve in the partially open position. These changes led to excessive corrosion rates in the naphtha piping and bypass valve, which prevented isolation and draining of the naphtha pipe. 14 2. The crude unit corrosion control program was inadequate. Although Avon refinery management was aware that opera- tional problems would increase corrosion rates in the naphtha line, they did not take timely corrective actions to prevent plug- ging and excessive corrosion in the piping. ES.6 Recommendations Tosco Corporation Conduct periodic safety audits of your oil refinery facilities in light of the findings of this report. At a minimum, ensure that: ■ Audits assess the following: , Safe conduct of hazardous nonroutine maintenance Management oversight and accountability for safety Management of change program Corrosion control program. Audits are documented in a written report that contains findings and recommendations and is shared with the workforce at the facility. r Audit recommendations are tracked and implemented. Ultramar Diamond Shamrock Golden Eagle Refinery I. Implement a program to ensure the safe conduct of hazardous nonroutine maintenance. At a minimum, require that: ■ A written hazard evaluation is performed by a multi- disciplinary team and, where feasible, conducted during the job planning process prior to the day of job execution. • Work authorizations for jobs with higher levels of hazards receive higher levels of management review, approval, and oversight. 15 A written decision-making protocol is used to determine when it is necessary to shut down a process unit to safely conduct repairs. r Management and safety personnel are present at the job site at a frequency sufficient to ensure the safe conduct of work. Procedures and permits identify the specific hazards present and specify a course of action to be taken if safety require- ments—such as controlling ignition sources, draining flam- mables, and verifying isolation—are not met. The program is periodically audited, generates written findings and recommendations, and implements corrective actions. 2. Ensure that MOC reviews are conducted for changes in operat- ing conditions, such as altering feedstock composition, increasing process unit throughput, or prolonged diversion of process flow through manual bypass valves. 3. Ensure that your corrosion management program effectively controls corrosion rates prior to the loss of containment or plugging of process equipment, which may affect safety. American Petroleum Institute (API) Paper, Allied-Industrial, Chemical & Energy Workers International Union (PACE) National Petrochemical & Refiners Association (NPRA) Communicate the findings of this report to your membership. 16 1 .0 Introduction 0 n February 23, 1999, a fire occurred in the crude unit at the 1 .1 Background Tosco Avon oil refinery in Martinez, California. Workers were attempting to replace piping attached to a 150-foot-tall fractionator tower while the process unit was in operation. During removal of the piping, naphtha was released onto the hot fractionator and ignited. The flames engulfed five workers located at different heights on the tower. Four of the workers died, and the fifth was seriously injured. Three of the deceased were contractors- two were employed by a scaffold erection company, and the other worked for a crane company. The fourth fatality and the worker injured were Tosco maintenance employees. Because of the seriousness of the incident and the fact that there had been a fatal explosion and fire at the refinery 26 months earlier, the U.S. Chemical Safety and Hazard Investigation Board (CSB) launched an investigation to determine the root and contributing causes and to issue recommendations to help prevent similar occurrences. 1 .2 Investigative CSB was one of three governmental agencies that investigated the incident. The California Department of Industrial Relations, Division Process of Occupational Safety and Health (C&VOSHA), and the Contra Costa County Health Services Department also conducted investiga- tions.' The CSB incident investigation team coordinated and shared information with these two agencies. CSB examined physical evidence at the site, conducted interviews, and reviewed relevant documents (such as a report authored by FTI Anamet (1999), prepared for CaVOSHA, entitled Metallurgical Evaluation of Naphtha Draw Line/Wve and Analyses of Petroleum 'Through the Department of Industria!Relations,Division of Occupational Safety and Health(CaVOSHA),California administers its own workplace safety and health program according to provisions of the Federal Occupational Safety and Health Act of 1970(see 29 CFR 1910). On January 15, 1999,Contra Costa County enacted an Industrial Safety Ordinance to"prevent and reduce the probability of accidental releases of regulated substances that have the potential to cause significant harm to the public health"(Contra Costa County Ordinance Code,Ordinance No.98A8,Section 1). The ordinance includes a risk management program,a human factors program, and a root cause analysis and incident investigation program.The human factors program was not in effect at the time of the incident. Contra Costa Health Services produced a report on the incident,entitled Investigation Into the Causes ofthe Fire of February 23, 1999,at No.50 Crude Unit Tosco Avon Refinery. 17 Samples From a Crude Unit at the Tosco Avon Refinery). CSB also contracted with The Hendrix Group in Houston,Texas, for assistance with corrosion and mechanical integrity analysis. The American Petroleum Institute (API) and the National Petrochemical & Refiners Association (NPRA) provided good practice information on the safe performance of maintenance work in oil refineries. In response to a CSB request, these two organizations produced a report entitled Work Authorization in Refineries (APVNPRA, 2000). 1 .3 Tosco Avon O i I The Avon refinery is located on a 2,300-acre site near the town of Refinery Facility Martinez in Contra Costa County, California. The refinery has been in operation for more than 80 years; its main products are motor fuels such as gasoline and diesel. Tosco Corporation operated the Avon facility from 1976-2000,when it was purchased by Ultramar Diamond Shamrock(UDS)and renamed the Golden Eagle refinery. Tosco is the nation's largest independent refiner of petroleum products and operates seven refineries across the United States. 1 .4 Crude Fractionator and Naphtha System 1.4.1 Fractionator The Avon facility refined crude oil' into motor fuels; other products included propane,butane, and fuel oils. The crude unit,or 50 Unit; was originally designed and built in 1946, and had undergone several major capital improvements. Crude oil fractionation is the initial step in the refining process. It involves splitting crude oil into portions with similar boiling points. The oil is distilled into streams, including natural gasoline, naphtha, s Crude oil is a complex mixture of hydrocarbons that varies in composition,quality, and appearance from one producin&field to another. }The crude unit where the incident occurred was also referred to as the"50 Unit." 18 kerosene, diesel, and a heavy oil used as feed for the cracking unit. A series of trays inside the fractionator functions in part to condense the hydrocarbons; in some cases, the trays are used to draw off liquid products from the tower. Processing is continuous. A steady flow of crude oil is pumped into the unit, while the product and feedstock streams are continuously pumped to tanks or other refinery units for further processing. 1 .4.2 Naphtha System At the Avon refinery, naphtha was removed from a tray near the top of the fractionator (I 12-foot level) into 6-inch steel piping. The naphtha flowed through the piping and a level control valve, and then into the naphtha stripper (Figure 1). From there, it was pumped to storage and the reformer unit for further processing. In prior years, the stripper had been used to remove lighter hydrocar- bons from the naphtha. This practice had been discontinued at the time of the February 23 incident. However, the vapor return line remained in place. 19 Naphtha Draw From Fracti onatorTo Naphtha Stripper Vessel �. �+xK� _ �� .{'rt!yyam.♦ f '{,. a , Figure 1. Naphtha i � � Y Yi• ��f �� 1 �3���4:� � F ,� • i ;' T"aur-itirir I�s����s , k f 5 rd€�i3��t tY�Stxii�T�el�T��*a��T stripper The valve at the •♦ right4manifold 2.0 Description of Incident he Incident "Timeline in Appendix A summarizes the sequence of activities that led to the fire on February 23, 1999. 2.1 Pre-Incident Events 2.1 .1 Detection of Naphtha Piping Leak On February 10, the crude unit was operating routinely when a pinhole leak was detected in the upper section of the naphtha piping. From the ground, the leak was observed to be small and dripping naphtha from the line through the insulation and onto a deck on the fractionator. 2.1 .2 Emergency Response and Inspection Emergency responders decided to attempt to isolate the line to slow or stop the pinhole leak without shutting down the process unit. Opera- tors lowered the pressure in the fractionator and diverted liquid from the naphtha tray. Personnel then donned firefighting "bunker gear"' and SCBAs,S and closed the block valve (valve A; unless otherwise noted, all valve and flange locations referenced in Section 2.0 are shown in Figure 2). Operators closed the naphtha stripper level control bypass valve (valve B) and two block valves(valves C and E). Later in the day, the operations supervisor' generated an emergency work order. Over the next 13 days, 15 work permits were written for 'Bunker gear is Name-and heat-resistant clothing. Self-contained breathing apparatus(SCBA)is respiratory protection worn when the breathable atmosphere may be dangerous to life or health. "At the Avon refinery,the operations supervisor,business team leader,operations shift supervisor,and operations superintendent were four distinct job tides,/positions. The operations supervisor worked days and,in particular,was responsible for prioritizing and coordinating maintenance work. He or she reported to the business team leader, who managed an area of the refinery as a business unit,solved day-today problems, and implemented long-term projects. The operations shift supervisor(hereinafter referred to as shift supervisor)worked rotating shifts and was the direct supervisor for all operators on his or her crew. The shift supervisor provided both work direction and personnel oversight. Shift supervision and the business team were in separate organizations at the Avon refinery and reported to different operations superintendents. 21 To Overhead Accumulator 11.0 prig Naphtha Draw S'Naphtha Draw Tray gate Valve C,Elev.-112'3" " " Initial Laak Point Flange i •"Naphtha Vapor Return Line 6"Naphtha Piping CRUDE FRACTIONATION TOWER Normal direction of naphtha flow 12.0 paig Flange 2 CL Elev.-36'1' NAPHTHA STRIPPER oHrr 4"Bypass-giolw Vaiw C,Elev.-36'24X'— y�i1 i„Inlet-gate S"Outlet-ante V ah» "C' ontrol "E Indicates Plugged ,. Vehti Area LC .150 "D" Naphthf7i1�on Fl ! CL-Centerline FV-173 Drawing not to Scale „�„ 3 heate..hangera M eeriea Naphtha Pure Figure 2. fractionator and naphtha draw,simplified diagram at time of initial leak. 22 this job, of which l 1 met Tosco's requirements for a special hazard permit (e.g., for inspection radiography, asbestos removal, and lead abatement). Once the insulation was stripped from the piping, the leak was determined to have originated from a 0.16-inch-long pinhole perfora- tion on the inner radius of an elbow directly downstream of the block valve off the fractionator (valve A), at an elevation of 112 feet. Further inspection using ultrasound and X-ray techniques revealed that much of the piping was severely corroded and thin. Technical staff recommended that the entire line be replaced from valve A to the naphtha stripper. 2.1 .3 Recurrence of Leak On February 13 and 17, operators observed that the leak reoccurred at the original site and that the naphtha piping was warm to the touch. On both occasions, Tosco personnel retightened the piping isolation valves (A and $), and the teak appeared to subside. On seven occasions from February 10.14, the liquid in the naphtha stripper rose to a high level and was lowered each time by operators opening the naphtha to storage flow control valve(valve J). On the last occasion,they left the valve open to the storage tank to prevent buildup in the stripper; the valve remained open until the day of the fire. On February 22,while preparing the fractionator area for hot work (i.e., cutting a metal deck to facilitate removal of the piping),the No. 1 operator'discovered the naphtha piping again dripping from the original leak point. The piping was hot to the touch. The shift super- visor observed the leak,and a small plug was placed in the hole. After the hot work was finished, the maintenance supervisor directed that the plug be removed. I Two or three operators were generally assigned to run the 50 Unit. They worked 12-hour rotating shifts. The No. 1 operator functioned as the lead worker and had the primary responsibility for running the unit safely and according to specifications. 23 2,1 .4 Efforts to Drain and Replace Piping On February 16 and 17, a No.I operator attempted to drain the naphtha piping under repair using the drain lines (valves F and G) located on either side of the naphtha stripper level control valve (valve D). The attempt failed; the drain lines appeared to be plugged. Operators advised the operations supervisor on February 17 that it was not feasible to replace the entire naphtha line from the fraction- ator to the stripper while the unit was still operating, as recom- mended by the inspection group. They pointed out that the section of line downstream of block valve E to the stripper could not be isolated because there was no block valve on the naphtha vapor return line. With input from Tosco inspectors, the operations supervisor deter- mined that the downstream piping did not require immediate replace- ment. The supervisor considered removal of the line from the fractionator to the control valve (valve D) to be a safe option because of the available isolation valves and drain lines. On February 18, pipefitters again attempted to clear the drain lines (valves F and G) at the naphtha stripper level control valve by using a reaming device. However, the device broke due to the hardness of the material in the line. On February 19, the maintenance supervisor directed an operator to issue a permit for removal of the spool pieces (from valve D to E) just downstream of the naphtha stripper level control valve. The supervi- sor was present at the job site during removal of the spool piece. The pipe was plugged solid with a dark, tar-like substance,which also contained large chunks of hard material (Figure 3)'. A blind flange equipped with a drain valve (valve 1; Figure 4)was installed on the downstream side of the control valve, and a solid blind flanges was attached on the upstream side of the block valve (valve E). Figure 3. Closeup of material blockage of block valve(C), upstream of LCV 150. 6A"spool piece"is a short piece of pipe flanged on both ends to provide for ease of removal or modification. 9 This flange is a solid plate piping component used for closing an open end of pipe. 24 ZAccumulater head 11.0 pslg Naphtha Draw Tray CL Elev.-112'3" "A" First Cut C L Elev.-104'8" Or Naphthe 8"Naphtha Vapor Release Return tine Second Cut C L Elev.-787" CRUDE FRACTIONATION TOWER 8"Naphtha Piping 12.0 psig Flange 2 — CL Elay.-38'1" NAPHTHA STRIPPER Plastic Sheeting "H Plastic Pan CL Etay.— 30'2318" 11„g„IT Hose Suctioning Material from Pan Indicates Plugged to Vacuum Truck Area Vacuum Truck CL-Centerline Drawing not to scale Figure 4. Fractionator and naphtha draw,simplified diagram, draining at lower flange at time of release. 25 The maintenance supervisor and the workers decided not to remove the spool piece upstream of the control valve (from valve C to D). The supervisor determined that valve C was jammed partway open, and isolation was in doubt (Figure 5). The operator logbook stated that draining would be attempted on Monday, February 22. However, workers did not attempt to drain the naphtha piping on February 22. The hot work permit for cutting the deck---signed by the shift supervisor, the No. l operator, and a maintenance worker— stated that the piping was not drained, locked, or tagged. Figure 5. Closeup of stern of block valve The maintenance supervisor and the maintenance lead planner (C),upstream of LCV,150,with the arranged for a vacuum truck to arrive at the job site on February 23 valve wheel fully tightened. to recover the naphtha. The protruding stem shows the valve to be jammed partway open,indicating possible material blockage in the line. 2.2 The Incident 2.2.1 Job Preparation On February 23, supervisors, operators, and maintenance workers were aware that the piping contained liquid naphtha. Both the permit readiness sheet and the work permit identified that draining was needed. The No. I operator and the maintenance workers inspected the job site and reviewed equipment conditions, and the permit was signed. In preparation for draining the line, the vacuum truck was placed into position approximately 20 feet from the base of the fractionator. A metal half-barrel was placed under the flange, with the attached drain valve (valve 1, Figure 4) downstream of the naphtha stripper level control valve (valve D). A hose was extended from the truck and placed in the barrel. An operator incrementally opened valve D from the control room to assist with draining the line from valve 1. Under the direction of their supervisor, the maintenance workers then attempted to open a flange,upstream of the control valve. Both efforts to drain the line were unsuccessful. The maintenance supervisor told the workers present that a section of piping should be cut and removed with the crane. He tapped on 26 the line and stated that he believed the naphtha level was below the proposed cut location. He stated to the operator that listening for differences in the sound at each tap point would identify the liquid level. The operator disagreed and responded that the naphtha should be removed before cutting the pipe.10 2.2.2 First Cut and Second Cut The maintenance supervisor directed workers to unbolt the piping from flange 1,downstream of valve A, and cut a short section of line with a pneumatic saw.'l The first cut into the line was d feet below Ndwm DrW Tray C,M*v..1i2'i• Pkat WCta"'-1049' UP""@Wd-"IS" �fl aia4 CW C`GA..•7rr tem RMTH MATICM YMIlE TR F-A rNw e, rlMlfl/ Flarra3 C`OW-WI• Figure 6. Fractionator and naphtha draw,simplified diagram, first cut and second cut. i0`JVitnesses in the control room in the late morning stated that the No. 1 operator discussed with them his argument with the maintenance supervisor prior to the fire. "The maintenance supervisor,however,denied that he was present or directed the first cut into the naphtha piping. He stated that he left the unit at 9:00 am. Other witnesses and the timeline of events contradict this testimony. For example,the verbal permit log shows the maintenance supervisor signing into the unit at 8:$0 am and departing at 9:50 am. The fact that he directed the work is consistent with his actions both before and after the first cut. The maintenance supervisor acknowledged that he directed the removal of the spool piece on February 19,and the second cut into the line and the opening of the flanges after lunch on February 23--before the piping had been drained or the isolation verified,contrary to Tosco procedures. 27 valve A. A blind flange was bolted to valve A. The remaining piping was open at the point of the cut and faced the fractionator (Figure 6). For the second cut, the maintenance supervisor directed workers to start 26 feet below the location of the first cut (Figure 6). When the saw pierced the inside diameter of the pipe wall, a small amount of liquid began to leak from the line. The worker operating the saw ceased cutting and was sent to obtain a pipe clamp to seal the leak. 2.2.3 Naphtha Release The maintenance supervisor decided to again attempt to drain the line by opening flange 2, located upstream of the naphtha stripper level control valve (valve D) and within 3 feet of the fractionator (Figure 4). Workers loosened the bolts on flange 2, which allowed liquid to flow. Plastic sheeting was hung to deflect the draining liquid away from the hot fractionator and into an open plastic pan, from which it was suctioned to the vacuum truck. The personnel conducting the work did not take into account that the naphtha piping was pressurized from the running process unit due to a severe leak through a badly corroded valve (valve $). In the "U"-shaped naphtha piping configuration, the head pressure of the vertical column of liquid functioned as a seal and prevented the process pressure from being released to atmosphere out the open end of the cut pipe. Once the workers drained a sufficient volume of naphtha from the flange on the vertical run of the piping (flange 2), the pressure from the running process unit leaking through the corroded valve sur- passed the reduced head pressure in the line. This resulted in a sudden release of liquid from the open piping at approximately 12:18 pm (Figure 4). The naphtha contacted the hot fractionator and ignited, quickly engulfing the tower structure and personnel. 28 The autoignition temperature of a material is defined as the tempera- 2'3 AlutOlgnitlOn ture at which its fuel/air mixture will ignite from its own heat source or contact with a hot surface, without spark or flame. Tosco's Material Safety Data Sheets (MSDS) for naphtha listed the autoignition temperature as 450 degrees Fahrenheit (°F). However, the lower half of a crude oil fractionator operates at temperatures of 500 to 650°F and the noninsulated manways protruding from the Avon refinery fractionator had surface temperatures just slightly below this range. Operators heard the naphtha ignite, used fire monitors to direct a 2.4 Emergency stream of water onto the fire, and began an emergency shutdown of Response the unit. Within minutes, the Tosca emergency response team was on scene and began firefighting efforts. The Contra Costa Fire and Consolidated Fire Departments responded and were positioned to provide support if requested. The fire burned for about 20 minutes. Rescue efforts were delayed because of the size of the fire, the risk of re-ignition, and the location of most of the victims on the tower. One worker was pronounced dead at the scene, and the other three victims died at the hospital. The fifth worker jumped away from the flames at an elevated location and sustained serious injuries. 29 3.0 Analysis of Incident The conduct of maintenance work in an oil refinery often involves flammable and toxic hazards, which must be carefully controlled to avoid injury to people and the environment (Lees, 1996; p. 2112). In investigating the Avon refinery incident, CSB found problems with job planning, hazard identification and evalua- tion, unit shutdown decision making, management oversight, permit- ting and line breaking, corrosion control and mechanical integrity, and management of change (MOC). CSB used several investigative techniques to analyze the incident, including establishing a timeline (Appendix A) and developing a logic tree diagram (Appendix B). 3.1 Hazardous In process plants, hazardous nonroutine maintenance includes such activities as hot work,12 hot tap,13 and work on live flare headers as well Nonroutine as line breaking when isolation and drainage cannot be ensured. The Maintenance nonmandatory appendix in the Occupational Safety and Health Administration's (OSHA) Process Safety Management (PSM) stan- dard" stresses the importance of employers identifying the hazards of nonroutine maintenance in process areas and communicating such hazards to those doing the work. The 1989 Phillips Houston Chemical Complex fire and explosion, which killed 23 workers, expedited issuance of the PSM standard. Like the 1999 Tosco incident, it involved improper isolation of piping and the failure of a valve during the conduct of hazardous nonroutine maintenance work in a running process unit(OSHA, 1990;pp.iv,ix,72). Because nonroutine maintenance is unscheduled, it may present special hazards. One such hazard introduced with breakdown maintenance, such as the job at Tosco, involves limitations on job planning(COPS, 1995b; p. 212). "Hot work is ran operation that can produce a spark or flame or other source of ignition having sufficient energy to cause ignition,where the potential for flammable vapors,gases,or dust exists"(API, 1995b;pp.2-3). 13 Hot tapping is"the technique of attaching a mechanical or welded branch fitting to piping or equipment in service,and creating an opening. . . by drilling or cutting a portion of the piping or equipment within the attached fitting"(API, 19958; p. 1). "Appendix C of 29 CFR 1910.1 19, Process Safety Management of Highly Hazard- ous Chemicals. 31 3.2 )o b Planning in the Avon refinery incident, preparatory maintenance activities such as stripping insulation and inspecting the piping began immediately after the leak appeared to subside. Job planning at the refinery typically involved a site visit and discussions among the maintenance lead planner, maintenance supervisor, and operations supervisor to identify potential problems in advance. However,this planning activity did not occur for the naphtha repair work. Just an hour after the leak was discovered, a permit was issued to strip insulation from the naphtha piping. The job was initiated without the line being locked or tagged out, depressured, or isolated, as required by Tosco procedures. If a line could not be isolated, the procedures stated that: Production, H&S, Inspection and Maintenance representa- tives must meet and agree on a safe procedure to remove the insulation. If insulation cannot be safely removed while the unit is online, the line or unit must be shut down.1I Although inspection, maintenance, and two operations superintendents were present, no meeting was held to discuss control of hazards. Not following insulation removal procedures did not directly cause the fire, but it was indicative of Tosco's practice of not consistently adhering to established maintenance procedures. Most of the preparatory maintenance work conducted in the 13 days prior to the incident was not listed in the job planning documentation, including the three permitted jobs where workers attempted to drain the piping. There was no mention that the naphtha, as a benzene- containing stream, was a serious health hazard that required specific precautionary measures; nor was it identified that a crane,vacuum truck, and pneumatic saw were to be used in the piping removal. No job-specific instructions were prepared for the naphtha piping repair work. The job planning documentation lacked necessary information, such as the MSDS for naphtha, a blind list," or the piping and instrumentation diagram showing where blinds were to be inserted. Good practice guidelines for maintenance job planning re Tosco Avon Safety Procedure S-36-1,Removing Insulation From Leaking Hydrocarbon Lines,November 20, 1995. "A blind list is a document that specifies the location for blinds to be installed to secure isolation of piping and equipment. 32 recommend outlining the steps necessary to accomplish the work and identifying the potential hazards of each step (COPS, 19956, pp. 249.250; Lees, 1996, P. 2.1/4).1' Good practice guidelines emphasize Adequate planning is also essential for effective isolation of piping and that hazards are most effectively equipment (HSE, 1997; pp. 4,6, 13).1° Good practice guidelines recognized and evaluated in the emphasize that hazards are most effectively recognized and evaluated calm atmosphere of the in the calm atmosphere of the job planning process rather than during job planning process rather than the often stressful environment of job execution (HSE, 1985, p. 11; during the often stressful COPS, 1995c, p. 17).19 For example, for hot work-one type of environment of job execution. hazardous nonroutine maintenance-API states that the potential hazards should be carefully analyzed as part of pre-job safety planning (API, 1995b; pp. 2.3). Prior to conducting hot tapping, API recom- mends preparing a written plan that addresses potential hazards and performing the procedure only after careful consideration of alterna- tives (API, 1995x; pp. 1, 5). During planning, Tosco management did not effectively identify the serious hazards present in conducting the piping repair in an operating process unit, Despite accumulating evidence of the inability to drain and isolate the piping during the week leading up to the fire,Avon Despite accumulating evidence of the management scheduled the pipe removal for February 23 with the unit inability to drain and isolate the in operation and without a plan to control hazards. piping during the week leading up to the fire,Avon management scheduled the pipe removal for February 23 with the unit in. operation and vvithout a plan to control hazards. 'r Although this CCPS citation references unit shutdown,the practice is even more appropriate for formal consideration during the safe execution of hazardous nonroutine maintenance in an operating unit. 10 These good practice guidelines were produced in the United Kingdom on a consensus basis by representatives of industry,government,and labor. "In discussing the management dilemma of production versus process safety,COPS guidelines state:"The continuity of operations can best be addressed at the planning stage." 33 3.3 Hazard Identification and Evaluation 3.3.1 job-Specific Hazards Significant hazards existed early on in the 13-day naphtha piping repair process: • The job involved the removal of 100 feet of 6-inch pipe con- taining naphtha, a highly flammable liquid.20 ■ Approximately 80 feet of the piping ran vertically near the side of the fractionator,whose surface temperature in the lower half of the tower exceeded the autoignition temperature of the naphtha stream to be drained. • The stem of block valve C, upstream of naphtha stripper level control valve D, protruded approximately 12 threads from the valve wheel when fully tightened, indicating that the valve was partially open and possibly plugged. (Unless otherwise noted, all valve and flange locations referenced in Section 3.0 are shown in Figure 2.) ■ The lack of a high point vent downstream of valve A would have made it difficult to purge the naphtha piping. 21 Tosco classified the naphtha piping repair as low risk, routine mainte- nance. Management did not recognize or evaluate the inability to isolate, inability to drain,or other hazards in light of conducting the work in an operating process unit. 3.3.1.1 Inability to Isolate On three occasions prior to the fire, the naphtha piping resumed leaking at the original location and the piping felt warm to the touch, indicating that one or more isolation block valves were leaking. In each instance, the valves were further tightened to try to stop the leak. 2'Tosco's MEDS for the 50 Unit naphtha stated that the National Fire Protection Association(NFPA)flammability hazard rating for the liquid was 4(on a 0 to 4 scale, with 4 being the most flammable). However,far the 15 work permits authorized for this repair,the NFPA rating either was not provided or was understated as a 2 or 3. 4'Purging the piping is important not only to remove residual material,but also to reveal possible plugging or solid material in the line,which can trap pressurized or residual liquids and gases(HSE, 1989,pp. 13-14;Metz, 1989,p. 13). 34 On February 13, a shift supervisor helped tighten the valves after the leak reoccurred. On February 17, a maintenance supervisor observed the leak reoccur and assisted operators in tightening the isolation valves. That same day, two operators told the operations supervisor and a maintenance supervisor that more than one valve isolating the naphtha piping was potentially leaking. On the morning of February 23, the operations process engineer stated that he suspected that an isolation valve was leaking. On seven occasions from February 10-14, the naphtha stripper vessel—which was located downstream of the naphtha piping—filled and operators lowered the level. On February 13, a shift supervisor log recorded that the stripper level had been lowered. This log was typically read by other supervisors and was available electronically to other management personnel. The shift supervisor stated that he suspected a valve might have been leaking. Leakage through the isolation valves was the most likely explanation for recurrence of the high level in the naphtha stripper. 22 3.3.1.2 Inability to Drain Draining equipment to remove hazardous material and verifying Draining equipment to remove isolation of the line are essential safety requirements prior to mainte- hazardous material and nance (COPS, 1995a, p.310, HSE, 1997, p. 47).2' From the discov- veri6dag isolation of the line are ery of the leak to the fire, there were seven failed attempts to drain the essential safety requirements naphtha from the piping. Tosco supervisors and workers were aware prior to maintenance. of the following draining problems: ■ On February 16, a No. 1 operator informed the business team leader that the naphtha drain lines were plugged. On February 17, after another unsuccessful draining attempt,two operators discussed plugging in the line with the operations supervisor and xt The naphtha stripper level filling several times in 2-hour intervals,combined with recurrence of the leak,established that the isolation valves were leaking. On February 14,the naphtha flow control valve(valve J)downstream of the stripper was left open, &flowing the naphtha to Sow out. The stripper remained empty until the day of the fire. "As stated in HSE's The Safe!solation ofPlants and Equipment: "Bleeds and vents allow the safe depressurization of parts of the plant when it has been isolated and also enable the integrity of isolations to be checked." 35 the maintenance supervisor. The operators proposed shutting down the unit to repair the piping. The operator logbook stated that the drain valves were plugged. • On February 16, the supervisors scheduled maintenance workers to drill out the drain lines. A permit readiness sheet was sent electronically to the operator and the shift supervisor communicating that the drain valves were to be cleared with a reaming device. Permit readiness sheets were also available to management in an electronic bulletin board. After several attempts, maintenance workers informed their supervisor that the material in the piping broke the reaming tool. The operator logbook noted that the attempt to drill out the drain lines was unsuccessful. • Workers accompanied by the maintenance supervisor removed a small section of piping downstream of the naphtha stripper level control valve (valve D) on February 19. The piping and the drain lines were extensively plugged. Block valve C, upstream of control valve D, was jammed partially open. Both permits executed on February 18 and 19 to drain the piping were checked "job not finished" in the closeout section. • On February 22, the operations supervisor issued a permit readiness sheet, with input from the maintenance supervisor, stating that draining was part of the work to be performed the following day. A vacuum truck was to be used to collect the naphtha. • An operations process engineer who visited the unit the morning of the fire was aware that naphtha was still in the piping and was told by operators of the unsuccessful attempts to drain the piping. At the direction of the maintenance supervisor, draining was attempted three times on the morning of February 23. 36 3.3.1.3 Other Hazards Another hazard not identified was that the naphtha contained benzene." Because benzene is a carcinogen, Tosco procedures required that equipment be drained to a closed system, away from employees 25 Maintenance work in the presence of benzene required the use of a special hazard permit with authorization by an operations supervisor. However, Tosco management did not recognize or permit the naphtha piping repair work as a benzene hazard, and these controls were not implemented. Not following these procedures did not directly cause the fire, but demonstrated Tosco's inconsistent adherence to its procedures. The pipe removal job involved coordinating contractors and workers from different departments, and using a crane in an operating process unit. Furthermore, it required positioning workers where they were potentially subject to the hazard of a sudden release or splashing of flammable liquid. Some workers were located as high as 112 feet above ground. Opening elevated lines is particularly hazardous because of the danger of flammable liquid splashing on personnel or sources of ignition (Kletz, 1989, pp. 14-15; see also COPS, 1995a, p. 310). Despite these serious hazards—known to supervisors and workers during the week prior to the incident—the low risk classification of the job was not reevaluated, nor did management formulate a plan to control hazards. 3.3.2 Goad Practice Guidelines for Maintenance Work A hazard evaluation is a formal analytical tool used to identify and examine potential hazards connected with a process or activity(COPS, 1992; p. 7). The evaluation assists management in process plants in "Tosco Avon MSDS for 50 Unit Naphtha,MSDS 1001,CSB 9914-E3.023,p.2. Tosco Avon Safety Order S-29,Benzene,July 1998;Attachment 2, 75 Tosco Avon Safety Order S-29,Benzene,July 1998;pp.3,6-7. 37 controlling hazards and preventing incidents. The Center for Chemi- cal Process Safety (CCPS) describes evaluation techniques for identifying hazards in maintenance activity in process plants (CCPS, 1992; pp. 11, 428-430). The guidelines suggest a number of questions to be used in performing a hazard evaluation of mainte- nance work.21 In its good practice guide for hazard evaluation, the Institution of Chemical Engineers of the United Kingdom states: It is advisable to cover aspects of maintenance operations (with a HAZOP study), including isolation, preparation and removal for maintenance since these often create hazards as well as operability problems(ICE,2000; p. 8).2' A number of factors may necessitate a hazard review of maintenance activity, including. ■ Hazardous activities, such as hot work or hot tap and repair work on a live flare line (API, 1995b; pp. 2.3). ■ Circumstances where existing procedures cannot be followed or where there are no applicable procedures (HSE, 1997; pp. 17- 18). ■ Situations where safety preconditions cannot be met, such as controlling ignition sources where flammables may be present. Good practice guidelines (HSE, 1997, p. 18; see also CCPS, 1992, pp. 428-430) recommend that a comprehensive hazard evaluation include assessment of, r Specific hazards introduced by performance of the maintenance work. ■ Patential problems in achieving adequate isolation, such as depressuring, draining, and purging. • Additional precautions, such as more frequent monitoring of the isolation, improved supervision, or contingency plans. ■ The feasibility of safely conducting work while the process unit is in operation or postponing the job. CCPS guidance recommends that hazard evaluation questions include: What hazards are introduced by the maintenance activity? is it necessary to completely shut down the process to safely conduct the repair? 27 HAZOP(hazard and operability)is a well-recognized hazard evaluation technique. 38 3.3.3 British Petroleum Grangemouth Incident An incident that occurred in 1987 at British Petroleum's Grangemouth refinery in Scotland was similar to the 1999 Tosco fire.21' The job that led to the Grangemouth incident involved the ,attempted isolation of a section of a live Flare line to remove a faulty valve. Four workers were killed after opening piping thought to be isolated and depressured, Although the isolation valves were placed in the closed position, plugging and valve leakage prevented complete isolation of the piping. The investigation report of the Health and Safety Executive of the United Kingdom made the following recom- mendations for senior management (HSE, 1989; pp. 13-14): r Conduct a detailed hazard analysis during job planning. • Before delegating work, develop detailed job instructions specific to the particular isolation to ensure the effective draining of flammable liquids. ■ Maintain rigorous control over possible ignition sources in the vicinity of maintenance work. Because of insufficient job planning and hazard evaluation, Tosco 3.4 Unit Shutdown Avon refinery management did not recognize that safe conduct of the Decision Making naphtha piping repair required shutting down the process unit. Once supervisors and workers knew that the line could not be drained or isolated, the unit needed to be shut down to safely conduct the repair. CSB recognizes that the shutdown and startup of an oil refinery Because of insufficient job planning process unit can introduce its own risks; however, the safe conduct of and hazard evaluation, Tosco Avon maintenance work requires a unit shutdown when serious hazards refinery management did not cannot otherwise be controlled or when the work cannot be deferred. recognize that safe conduct of the naphtha piping repair required shutting down the process unit. 38 See also"Lessens Learned From an On�Plot Refinery Tank Explosion," CCPS, 2000;p.3. A lesson learned from the incident: "Pre-job hazard assessment should be conducted. Removing the strainer was a nonroutine task. The job planning and control did not include a discussion of the hazards by the personnel doing the job." 39 In spite of evidence that the line contained naphtha and was severely plugged, operations supervisors scheduled the piping removal. Multiple sources of ignition were as close as 3 feet from the repair work. Hot equipment surfaces, the most likely source of ignition, could be eliminated as a hazard only if the equipment was cooled, which required shutting down the unit. The work could not be deferred because the piping required immediate replacement. In an effective maintenance work evaluation process, CCPS recommends that management carefully consider whether it is "necessary to shut down the process completely to safely repair a piece of equipment" (CCPS, 1992; p. 429). 3.5 Management Oversight 3.5.1 Accountability for Hazardous Work Despite significant hazards, Tosco management planned and executed the naphtha piping repair work as low risk maintenance. Under Tosco procedures, the unit operator was solely responsible for authorizing this work. Operations supervisors were minimally A management system of involved in planning or overseeing the line repair. No senior accountability should include methods management or specialist personnel participated in assessing hazards. for establishing responsibility, Although inspection personnel were included in decision making evaluating performance, establishing concerning the scope of the repair, their participation was limited to feedback systems, and auditing, reviewing inspection data and determining what sections of the piping required immediate replacement. Management oversight and accountability are essential elements of an effective PSM program. A management system of accountability should include methods for establishing responsibility, evaluating performance, establishing feedback systems, and auditing (CCPS, 1995c; p. 15). At CSB's request, API and NPRA prepared a document on oil refining industry practices for authorizing repair and maintenance work. It states that for situations involving higher risk, such as hot work or the inability to isolate a leaking line, a higher degree of management scrutiny and approval may be needed; 19 2'See also CCPS, 1995b;p.229. 40 Depending on the degree of risk some jobs may require, at a minimum, the approval of both a senior level safety person and the operations manager to deviate from routine or defined work practices. Higher risk jobs may require a risk management tears including both labor and management level persons and safety, operations, maintenance, engineer- ing, metallurgy and other disciplines depending on the nature of the work request (APVNPRA, 2000). If a multidisciplinary team and senior management had participated in evaluating hazards and determining whether to shut down the process unit to safely conduct the repair, it is likely that the job would not have been allowed to proceed and the incident would not have occurred. 3.5.2 Supervision of Job Execution The conduct of hazardous nonroutine maintenance requires close supervision, including frequent monitoring and unscheduled checks (GCPS, 1995b, p. 212; Townsend, 1998, p. 49). At the Avon refin- ery, operations supervisors stated that they oversaw activities in the process units when requested by the operators or as needed. Can the morning of the incident, operations supervisors did not oversee the naphtha piping removal. The operations supervisor responsible for coordinating maintenance was not at work on February 23; the person responsible for filling in during such absences did not visit the unit prior to the fire. The shift supervisor phoned the No. I operator prior to initiation of the piping repair work, asking if there were any problems in the unit. The operator responded that there were none. The shift supervisor visited the unit the morning of the incident, but did not observe the piping repair activities, review the permit, or inquire about the status of the draining attempts that had been ongoing for over a week.30 Also, no health and safety personnel visited the job site before the incident occurred. Despite the presence of a crane, a vacuum truck, and "The job description of the shift supervisor states the he or she is"accountable for everything that takes place with their crew."including ensuring"that all equipment is prepared properly and timely,that permits are completed and signed as appropriate per scheduled maintenance pian." 41 numerous contractors, the maintenance supervisor was the only management representative present during the conduct of the repair work on February 23. A number of other deviations from Tosco procedures and good practice guidelines occurred during the naphtha piping repair activities. Although the following deviations were not directly causal to the incident, they demonstrated a pattern of serious management oversight deficiencies regarding maintenance activities at the Avon refinery: • Naphtha was not recognized as a benzene stream and a health hazard. None of the piping repair work activities adhered to Tosco's benzene procedure,which required a special hazard permit and safety precautions, such as engineering controls, a benzene regulated area, personal protective equipment (PPE), and benzene exposure monitoring. 31 • The use of a vacuum truck on February 23 was not included in the work permit, nor was a mobile entry permit issued, as required by Tosca procedures. 32 ■ The use of a pneumatic saw in the piping removal was not included in the work permit, another requirement under Tosco procedures.33 • Several special hazard work permits authorized for the naphtha piping repair were not signed by the shift supervisor, as required by Tosco procedures. Tosco procedures delegated to the operator the primary responsibility for identifying and controlling the hazards present in hazardous nonroutine repair. Process safety expert Frank Lees advises: It is desirable to include a caution to the effect that. . . although work may be delegated, responsibility remains with him (supervision), an indication of the levels of hazard so that high hazard situations are highlighted and those involved are prompted to consider whether there are other parties who should be consulted (Lees, 1996; p. 21/16). 31 Tosca Avon Safety Order S-29,Benzene,July 1998. "Tosco Avon Procedure TRFE003,Procedure for 100-Barrel Vacuum Truck, September 1995. sn Tosco Avon Procedure PFFE005,Procedure for Portable Pawer Pneumatic Hack- saw,December 1995. 42 Inadequate supervision was one of the issues the U.S. Environmental Protection Agency (EPA) investigated in its analysis of a fatal incident in the hydrocracker unit at the Avon refinery in 1997. EPA reported that inadequate supervision was a causal factor in the failure of a reactor effluent pipe and one fatality (USEPA, 1998; p. 65). The report stated that supervisor oversight of operations was deficient and contributed to the lack of adherence to emergency procedures. EPA concluded that there was no supervision at the unit during the hazardous abnormal situation, even though there had been a succes- sion of operating problems prior to the temperature excursion that led to the pipe failure and fire. 3.5.3 Stop Work Authority Tosco workers involved in the piping repair stated that they felt pressure to promptly execute the job because the unit was the only crude unit operating at that time.31 Pressure to complete the job was also created by the presence of the vacuum truck, a crane, and contract workers. Tosco management stated that workers had the authority to stop unsafe work activity and should have stopped the line replacement Stop work authority—though a job. However, stop work authority—though a desirable safety policy if desirable safety policy if properly properly encouraged—is a less effective measure for incident preven- tion than good job preplanning for the following reasons(HSE, 1985, encouraged is a less effective p. 11; COPS, 1995c, p. 17): measure for incident prevention than good job preplanning. • It is exercised during the execution of work, when pressures to get the job done are generally greater.35 • It relies on the assertiveness of individual workers. To attempt to stop a job, a worker may need to assert a position that runs contrary to direct instructions from a supervisor. ■ Once the job has begun, the idling of contractors and equip- ment can result in significant financial cost to the facility, which can add to the pressure to get the job done without delay. The No.3 unit was shut down in December 1998 and was being decommissioned. "In discussing the management dilemma of production versus process safety,COPS guidelines state:"The continuity of operations can best be addressed at the planning stage."(CCPS, 1995c;p. 17) 43 3.5.4 Auditing The Avon refinery's safety auditing program consisted of undocu- mented observations (referred to as"layered safety surveys"). 76 These observations focused on worker behavior rather than measuring the effectiveness of procedures, they did not record findings, make recommendations, or track corrective actions. In 1995,Tosco conducted a documented audit of its PSM program, as required every 3 years by C,aVOSHA. Tosca did not conduct a PSM compliance audit in 1998. Furthermore, neither Tosco Corporation nor Avon refinery management conducted documented audits of the facility's line breaking, lock-outltag-out, or blinding procedures and practices in the 3 years prior to the incident. Tosco's auditing program did not record or remedy the pattern of serious deviations from the safe performance of maintenance work and proper review of operational changes in process units. These devia- tions included: v Opening of piping containing flammable liquids prior to draining. Transfer of flammable liquids to open containers proximate to sources of ignition. Industry good practice guidelines ■ Inconsistent use of blind lists. recommend that an audit program ■ Lack of supervisory oversight of hazardous work activities. consist of documenting findings, Inconsistent use of MOC reviews for process changes. formulating corrective action to improve performance, and instituting Safety audits are an essential feedback mechanism for the effective followup controls. functioning of a facility's safety management system. Industry good practice guidelines recommend that an audit program consist of documenting findings, formulating corrective action to improve performance, and instituting followup controls (COPS, 1995c; pp. 313, 316). Effective audits would have likely detected the inconsistent adherence to procedures at the Avon refinery and could have corrected these problems prior to the incident. 116 Tosco asserted that some other documented audits were conducted at the Avon refinery,but did not provide CSB with evidence of such audits. Interview evidence indicates that no audits were conducted other than the layered safety surveys and the 1995 compliance audit. 44 3.6 Permit System and Line Breaking 3.6.1 Permit and Procedure Deficiencies Procedure Deficiencies in two key elements of the maintenance work system- permitting and line breaking-contributed to causing the refinery fire. The Avon refinery used written procedures, including a permitting system,to prepare equipment for maintenance work. The safe work procedure, which governed the work permitting system,applied to"all low risk and special hazard work."37 The opening of pipelines or equipment required permitting. The procedure stated that the opera- tor must ensure that equipment is depressured, drained, flushed, and purged of chemicals as completely as possible. The authority to approve and issue work permits was generally delegated to operators; however, some types of higher hazard work required the approval of the shift supervisor or a health and safety department specialist. Higher hazard work included jobs that required entry into confined spaces, jobs that involved high energy hot work,38 and those categorized as special hazard (e.g., opening live flare lines, radiography, and exposure to toxic materials such as lead, asbestos, benzene, and butadiene). Deficiencies in the permitting system at the Avon refinery were exemplified by the permit issued on the day of the incident, which listed three tasks with different preparation requirements. By listing draining and removal together, the permit allowed both activities to be authorized even though draining was required before removal of the piping 39 The following deviations from good practice occurred with regard to line breaking and contributed to causing the incident: a Hazardous nonroutine maintenance work was executed with- out a review of the job or permit authorization by an operations supervisor. Tosco Avon Procedure S-5,Safety Orders,Departmental Safe Work Permits, October 1998. 'Jobs that might result in sparks are defined as low energy hot work. Tasks involving the use of direct flames(such as torch cutting or welding)are defined as high energy hot work. 74 Tosco procedures did not restrict work authorizations to one job per permit. 45 • Neither Tosco procedures nor the permit clearly indicated that personnel were to eliminate or effectively control sources of ignition prior to opening equipment. • No course of action was specified if the required preparatory steps for opening piping, such as draining, could not be accom- plished. 3.6.1.1 Inability to Follow Procedures Good practice guidelines on equipment opening recommend that permits and procedures provide direction as to what course of action to take if existing hazards cannot be controlled or new hazards arise (Lees, 1996; p. 21/22). If the hazards require variation from the normal level of isolation,the work should be stopped and a hazard evaluation conducted by an appropriate level within management (HSE, 1997; p. 17). Tosco's permit system and procedures did not provide direction on what course of action to take if a line could not be drained. 3.6.1.2 Identification of Specific Hazards In addition, industry good practice guidelines recommend that permits and procedures identify the specific hazards that may be encountered (Lees, 1996; p. 21/22). Neither Tosco procedures nor the permit form addressed the hazards of open containers of flam- mables or ignition sources from hot equipment surfaces, which were as close as 3 feet from the piping removal work. Workers were directed by the maintenance supervisor to drain the highly flammable liquid into an open plastic pan with multiple sources of ignition nearby. Process safety expert Trevor Kletz notes the often-unrecog- nized hazards of open containers (Kletz, 2000; p. 4). He emphasizes that open containers of flammable liquids should not be used in process plants because of the many potential ignition sources. Another potentially hazardous activity was the transfer of naphtha to the vacuum truck, which was parked approximately 20 feet from the fractionator. Tosco procedures did not contain spacing requirements for placement of the truck. Good practice guidelines recommend that 46 vehicles used for transferring flammable liquids not be allowed within at least 100 feet of sources of ignition (API, 1999; p. 9). The potential hazard of static electricity was another issue not addressed by procedures or the permit system. Just prior to the incident, a plastic pan and sheeting were used to drain naphtha from the flange located near the fractionator. Transferring flammable liquids to a container such as a plastic pan or the use of plastic sheeting--both of which have insulating properties- may generate a static electrical charge. Furthermore, splashing of the liquid may also generate static electricity (NTSB, 1999; p. 2). 3.6.2 Deviations From Good Practice Failure to drain the line prior to opening was another deviation from good practice. On several occasions during the course of the repair work, equipment had been opened prior to draining. On February 19, a small section of piping was removed before draining in an unsuccessful attempt to unplug the line. On the morning of the incident, the maintenance supervisor directed workers to cut and remove the top 9-foot section of the naphtha piping.40 Personnel working on the removal job were aware that the piping contained naphtha. Two flanges were opened in an attempt to remove the naphtha, and another flange was opened when the top section of piping was removed. Tosco procedures required draining prior to opening equipment or using a pneumatic saw. 41 It was a historical practice at the Tosco refinery to sometimes open equipment containing flammable liquids prior to draining. When drain lines were plugged or not available, witnesses described open- ing flanges in operating process units to release flammable liquids into an open container or onto the ground. Supervisors and workers did not perceive that this departure from Tosca procedures was a serious hazard. w The pipe was cut using a pneumatic saw. "'Tosco Avon Procedure S-5,Safety Orders,Departmental Safe\Nark PL-rmits, October 19, 1998;and PFFE005,Procedure for Fbrtable Wwer Pneumatic Hacksaw, December 1995. 47 Good practice guidelines for process plants recommend that flanges not be opened or lines cut prior to draining flammable liquids (Lees, 1996; p. 21/26). Moreover, draining of flammables should take place through a closed system so as to shield the liquid from sources of ignition (Amoco, 1984; p. 13).42 In addition, the use of a flange to drain flammable liquids in a running process unit with nearby sources of ignition is an unsafe practice because neither the rate nor the direction of flow can be adequately controlled, and it may be difficult to quickly stop the flow if needed. 3.7 Corrosion Control and Mechanical 3.7.1 Desalter Performance I ntegrity, A desalter is a crude oil processing vessel that reduces corrosion, plugging, and fouling of piping and equipment by removing inorganic salts, water, suspended solids,and water-soluble trace metals. The accelerated rate of corrosion in the naphtha piping was predominantly caused by a decrease in desalter performance and the entry of exces- sive amounts of water and corrosives into the fractionator(Hendrix, The accelerated rate of corrosion in 2000; p. 1). the naphtha piping was predominantly caused by a decrease in desalter In the year prior to the incident, the desalter was run 40 percent performance and the entry of beyond design capacity using heavier crude oils. The API gravity of the excessive amounts of water and crude feed to the unit dropped on average from 27.2° in 1997 to corrosives into the fractionator. 23.7® in 1998• Heavier oils with a lower APi gravity are more difficult to separate from water, which impedes the desalting process. Two internal incident reports describe desalter upsets that were directly related to crude feed and vessel problems at the Avon refin- ery. A September 1998 report recommended better dewatering of the crude. A March 1998 report described a serious incident when the gravity of the feed to the unit fell to 18°API. The report stated 12 As Amoco reports: "Some equipment drains used during the shut down operation may not have permanent connections to a pump-out or closed drain system. if the material released from these drains can bum and then injure persons and damage equipment,install temporary facilities to drain the material to a closed system or another safe place." 48 that increased corrosion rates could be expected, specifically in the fractionator overhead and naphtha systems. Operating logs for the unit noted more than two dozen desalter upsets during 1998. Performance deteriorated severely late in the year when the No. 3 crude unit was shut down. A process engineer A process engineer described described the desalter performance as "hopeful to non-existent." the desalter performance as The chemical contractor for the desalter, Nalco/Exxon, also docu- "hopeful to non-existent." mented concerns about performance in a November 1998 memo, which stated that efforts to run the desalters efficiently had "never been more difficult.1143 In a memo written in November 1998, Tosco management identified several potential improvements for immediate study and evaluation. These included operating the desalter vessels in parallel instead of in series, relocating a desalter from the No.3 unit, and changing the electrolytic technology. Proposed solutions related to ongoing dewater- ing problems were also identified. Although Tosco management recognized the operational problems with the desalter, they did not adjust their equipment inspections accordingly;" nor did they imple- ment corrective actions in a timely way to prevent material from plugging the pipe and to prohibit excessive corrosion in the unit. 3.7.2 Corrosion Maintenance records and notations in the operator's logbook re- vealed that as early as May 1998 the naphtha stripper level control valve (valve D) did not allow sufficient flow to maintain a liquid level inside the naphtha stripper. The bypass was run in the partially open position for at least 10 months prior to the incident, and the valve became plugged with solid corrosion deposits. The piping near valve D and the associated drain valves eventually became totally plugged. long-term use of the partially open bypass valve also made it suscep- tible to erosion/corrosion. 43 Nalco/Exxon Energy Chemicals memorandum to Tosco Corporation,"50 Unit Desalten Status,"November 10, 1998. 91 CSB investigators retained The Hendrix Group to examine corrosion and mechani- cal integrity issues related to this incident. The Hendrix Group found shortcomings (Appendix C)with the unit inspection program. However,CSB concluded that these problems were not directly causal to the fire. 49 Following the incident, CaVOSHA commissioned a metallurgical analysis of the failed piping and components. It was determined that the bypass valve was eroded to such an extent that—when closed—it leaked (Figure 7) at a rate equivalent to a 1.5,inch-diameter hole (FTI Anamet, 1999; p. i). It was determined that the bypass valve was eroded to such an extent that—when closed-4t leaked at a rate equivalent to a 1.54nch-diameter hole. Figure 7. Leak test of the naphtha stripper level control bypass valve(B) in the closed position,showing significant water flow. The inset photo highlights the gap between the seat and disc of the bypass valve in the closed position. This gap was equivalent to a 1.5-inch-diameter hole. FTI Anamet determined that excessive amounts of ammonium chloride in the naphtha intensified the corrosive activity. Multiple analyses of residue specimens from the line were found to have very high chloride contents. This corrosive salt found its way into the fractionator and naphtha draw piping when the overhead reflux contained excessive water due to a large volume of water in the 50 crude feed. The combination of corrosive salts and water in the naphtha piping led to excessive accelerated oxidation, which produced the original leak as well as the plugging in the piping and The combination of corrosive salts erosion/corrosion in the bypass valve. CSB investigators determined and water in the naphtha piping that the naphtha line was plugged with iron oxide, ammonium led to excessive accelerated chloride, and sulfur compounds, which were either corrosive oxidation, which produced the materials or products of corrosion. original leak as well as the plugging In recognizing problems with chloride salt accumulation and plugging in the piping and erosion1corrosion in the naphtha section of the fractionator tower, Tosco Avon man- in the bypass valve. agement developed a water washing procedure to flush chlorides from the naphtha section of the tower.15 3.8 Management Tosco,Avon management did not conduct an MOC review of the 511� potential safety effects on the fractionator and associated piping that of Change might result from: • Operating the desalter beyond its design parameters. • Increasing water in the crude feed, • Shutting down the No, 3 unit and resulting effects on the 50 Unit. API Recommended Practice 750 recommends that refiners review hazards that may be introduced as a result of projects or changes in operating conditions that increase throughput or accommodate different feedstocks (API, 1990; p. 4). The Avon refinery's MOC program required an MOC review to be performed with a change in feedstocks.'16 Moreover,Tosco's program and API 750 stated that an MOC review should occur prior to changing design conditions. A Nalco/Exxon memo in December 1998 stated that the crude feed to the desalters was further increased to 55 to 80 percent over design specifications." Not conducting an 4'Tosco Avon Procedure 16-MS,06,Water Washing the Main Fractionator,Septem- ber 199& 'Tosco Avon Safety Order 5-12. Management of Change Policy,March 1998;p.8. 4T Nalco/Exxon Energy Chemicals memorandum to Tosco Corporation, '50 Unit Desalters Report,'December 7, 1998, 51 MOC review of changes in the feedstocks contributed to causing excessive rates of corrosion in the naphtha piping. In addition, management did not conduct an MOC review for the process change of running with the naphtha stripper level control API 750 recommends conducting an bypass valve partially open for a prolonged period. API 750 recom- MOC review for changes in mends conducting an MOC review for changes in technology that technology that include 'bypass include "bypass connections around equipment that is normally in connections around equipment that is service" (API, 1990; p. 5). Not conducting an MOC review for normally in service." operation of the bypass valve in the partially open position for months at a time resulted in the buildup of semisolid material in the control valve piping and drain lines, as well as erosion/corrosion of the valve seat and disc. 52 4,0 Root and Contributing Causes 1. Tosco Avon refinery's maintenance management system did 4.1 Root Causes not recognize or control serious hazards posed by performing nonroutine repair work while the crude processing unit remained in operation. • Tosco Avon management did not recognize the hazards presented by sources of ignition, valve leakage, line plugging, and inability to drain the naphtha piping. Management did not conduct a hazard evaluation of the piping repair during the job planning stage. This allowed the execution of the job without proper control of hazards. ■ Management did not have a planning and authorization process to ensure that the job received appropriate manage- ment and safety personnel review and approval. The involve- ment of a multidisciplinary team in job planning and execution, along with the participation of higher level management, would have likely ensured that the process unit was shut down to safely make repairs once it was known that the naphtha piping could not be drained or isolated. • Tosco did not ensure that supervisory and safety personnel maintained a sufficient presence in the unit during the execu- tion of this job. Tosco's reliance on individual workers to detect and stop unsafe work was an ineffective substitute for manage- ment oversight of hazardous work activities. ■ Tosco's procedures and work permit program did not require that sources of ignition be controlled prior to opening equip- ment that might contain flammables, nor did they specify what actions should be taken when safety requirements such as draining could not be accomplished. 2. Tosco's safety management oversight system did not detect or correct serious deficiencies in the execution of maintenance and review of process changes at its Avon refinery. Neither the parent Tosco Corporation nor the Avon facility management audited the refinery's line breaking, lockout/tagout, or blinding procedures in the 3 years prior to the incident. Periodic audits would have likely detected and corrected the pattern of serious deviations from safe work practices governing repair work and operational changes in process units. These deviations included practices such as: 53 ■ Opening of piping containing flammable liquids prior to draining. ■ Transfer of flammable liquids to open containers. ■ Inconsistent use of blind lists. ■ Lack of supervisory oversight of hazardous work activities. ■ Inconsistent use of MOC reviews for process changes. 4.2 Contributing 1. `Tosca Avon refinery management did not conduct an MOC Causes review of operational changes that led to excessive corrosion rates in the naphtha piping. Management did not consider the safety implications of process changes, such as: ■ Running the crude desalter beyond its design parameters. ■ Excessive water in the crude feed. ■ Prolonged operation of the naphtha stripper level control bypass valve in the partially open position. These changes led to excessive corrosion rates in the naphtha piping and bypass valve, which prevented isolation and draining of the naphtha pipe. 2. The crude unit corrosion control program was inadequate. Although Avon refinery management was aware that opera- tional problems would increase corrosion rates in the naphtha line, they did not take timely corrective actions to prevent plug- ging and excessive corrosion in the piping. 54 5.0 Recommendations onduct periodic safety audits of your oil refinery facilities in light Tosco Corporation of the findings of this report. (I 999,0144,CA,RI) At a mini- mum, ensure that: a Audits assess the following: • Safe conduct of hazardous nonroutine maintenance • Management oversight and accountability for safety • Management of change program • Corrosion control program. • Audits are documented in a written report that contains findings and recommendations and is shared with the workforce at the facility. ■ Audit recommendations are tracked and implemented. Ultramar Diamond 1. Implement a program to ensure the safe conduct of hazardous pram r Golden nonroutine maintenance. (1999-014.1-CA-It2) At a minimum, Sham (c G Golden require that: Refinery ■ A written hazard evaluation is performed by a multi- disciplinary team and, where feasible, conducted during the job planning process prior to the day of job execution. ■ Work authorizations for jobs with higher levels of hazards receive higher levels of management review, approval, and oversight. r A written decision-making protocol is used to determine when it is necessary to shut down a process unit to safely conduct repairs. • Management and safety personnel are present at the job site at a frequency sufficient to ensure the safe conduct of work. • Procedures and permits identify the specific hazards present and specify a course of action to be taken if safety require- ments--such as controlling ignition sources, draining flam- mables, and verifying isolation—are not met. • The program is periodically audited, generates written findings and recommendations, and implements corrective actions. 55 2. Ensure that MOC reviews are conducted for changes in operating conditions, such as altering feedstock composition, increasing process unit throughput,or prolonged diversion of process Flow through manual bypass valves. (I 999.0144,CA>113) 3. Ensure that your corrosion management program effectively controls corrosion rates prior to the loss of containment or plugging of process equipment, which may affect safety. (I 999.014.1-CA-114) American Petroleum Institute (API) Paper, Allied-Industrial, Chemical & Energy Workers International Union (PACE) National Petrochemical & Refiners Association (NPRA) Communicate the findings of this report to your membership. (i 999.014.1-CA-R5) By the U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD Gerald V Pole, Ph.D, Member Isadore Rosenthal, Ph.D. Member Andrea Kidd Taylor, Dr. 15 H. Member March 21, 2001 56 6.0 References American Petroleum Institute (API) and National Petrochemical & Refiners Association (NPRA), 2000. Work Authorization in Refineries, prepared for U.S. Chemical Safety and Hazard Investigation Board (CSB),July 2000. American Petroleum Institute (API), 1999. ,Safe Operation of Vacuum Trucks in Petroleum Service,API Publication No. 2219. American Petroleum Institute (API), 1995a. Procedures for Welding or Not Tapping on Equipment in Service,API Recommended Practice 2201, Fourth Edition, September 1995, American Petroleum Institute (API), 1995b. Safe Welding, Cutting, and Other Not Work Practices in Refineries, Gas Plants, and Petrochemical Plants,API Publication No. 2009, Sixth Edition. American Petroleum Institute (API), 1990. Management of Process Hazards, Recommended Practice 750, First Edition, 4.2.2(b). Amoco tail Company, 1984. Safe Ups and Downs for Refinery Units, Center for Chemical Process Safety(CCPS), 2000. "Lessons Learned From an On-Plot Refinery Tank Explosion,"by K.Ann Paine, Process Industry Incidents American Institute of Chemical Engineers (AIChE). Center for Chemical Process Safety (CCPS), 1995x. Guidelines for Process Safety Documentation, American Institute of Chemical Engineers (AIChE). Center for Chemical Process Safety(COPS), 1995b. Guidelines for Sate Process Operations and Maintenance,American Institute of Chemical Engineers (AIChE), Center for Chemical Process Safety(CCPS), 1995c. Plant Guidelines for Technical Management of Chemical Process Safe%Ameri- can Institute of Chemical Engineers (AIChE). Center for Chemical Process Safety (COPS), 1992. Guidelines for Hazard Evaluation Procedures,American Institute of Chemical Engineers (AIChE). Contra Costa County, California, 1999, Investigation Into the Causes of the Fire ofFebruary 23, 1999,at No. 527 Crude Unit, Tosco Avon Refinery, Contra Costa Health Services, July 1999. 57 FTI Anamet, 1999. Metallurgical Evaluation of Naphtha Draw Line1 Valve and Analyses of Petroleum Samples From a Crude Unit at the Tosco Avon Oil Refinery,prepared for California Depart- ment of Industrial Relations, Division of Occupational Safety and Health. Health and Safety Executive (HSE), 1997. The Safe Isolation of Plants and Equipment Oil Industry Advisory Committee, Norwich, U.K.: HSE Books. Health and Safety Executive (HSE), 1989. The Fires and Explosion at BP Oil(Grangemouth)Refinery Ltd., Norwich, U.K.: HSE Books. Health and Safety Executive (HSE), 1985. Deadly Maintenance, Norwich, U.K.: HSE Books. Institution of Chemical Engineers (ICE), 2000. HAZOP.• Guide to Best Practice, Guidelines to Best Practice for the Process and Chemical Industries, Rugby, U.K. Kletz, Trevor A., 1989. What Went Wrong? Case Histories of Process Plant Disasters, Second Edition, Gulf Publishing Company. Lees, Frank P., 1996. Loss Prevention in the Process Industries: Hazard Identification Assessment and Control, Vol. 2, Second Edition, Oxford, U.K.: Butterworth-Heinemann. National Transportation Safety Board (NTSB), 1999. Safety Recom- mendation H--99-42, to the International Association of Fire Chiefs, October 1, 1999. Occupational Safety and Health Administration (OSHA), 1990. The Phillips tib Company Houston Chemical Complex Explosion and Fire,A Report to the President U.S. Department of Labor. The Hendrix Group, Inc.,2000. Hendrix Report to the CSB. Townsend,Arthur, 1998. Maintenance of Process Plant Second Edition, Rugby, U.K.: Institution of Chemical Engineers (ICE). U.S. Environmental Protection Agency (USEPA), 1998. Chemical Accident Investigation Report Tosco Avon Refinery, Martinez, California, November 1998. 58 APPENDIX A: Incident Timeline 1. February 10, 1999,Wednesday a. 1:20 pm: A leak was detected in the 50 Unit at the first elbow of the naphtha piping leaving the crude fractionator tower (just downstream of valve A, Figure 2). b. Emergency responders arrived at the scene of the leak with firefighter personal protective equipment (PPE) and self- contained breathing apparatus (SCBA). Fire hoses and a snorkel truck were set up in case of a fire and used to wash down the fractionator tower and decks. c. The following valves were placed in the closed position to isolate the naphtha piping—the block valve on the naphtha draw line near the fractionator (valve A), block valves C and E upstream and downstream of the naphtha stripper level control valve (valve D or LCV 150), and the naphtha stripper level control bypass valve (valve B).1 The naphtha piping appeared to stop leaking. No clamp was installed on the leaking section of the pipe. d. 2:25 pm: Work began to strip insulation from the naphtha piping. The operations superintendent and the superintendent of shift operations were on scene during isolation of the line and at the beginning of the insulation removal work. e. An emergency work order was requested to replace the naphtha piping. f. The naphtha piping was inspected using ultrasonic and radiographic testing to identify the extent of wall thinning. g. 9:40 pm: The liquid in the naphtha stripper vessel rose to a high level, Operations personnel lowered the liquid level by opening the naphtha to storage flow control valve(valve J, Figure 2), downstream of the naphtha stripper. 2. February 11,Thursday a. As a result of the initial inspection, a decision was made to replace all of the naphtha piping from the fractionator to the naphtha stripper. 'Valves A,B,C,and E(Figure 2)are also referred to as the isolation valves. 59 b. Contract workers began erecting scaffolding on the fraction- ator to provide access to the piping. 3. February 12, Friday: The liquid level in the naphtha stripper increased again and was lowered by operations personnel. 4. February 13, Saturday a. A No. 1 operator observed naphtha "misting" from the hole on the naphtha line at the site of the original leak on February 10. The naphtha piping felt warm to the touch. The No. I operator and the shift supervisor tightened the isolation valves with a wrench and an extension in an attempt to stop the leak. The leak appeared to subside. b. The operator logbook noted that"the ruptured draw line is full" in reference to the naphtha piping that had been leaking. c. The high naphtha stripper level was lowered after retightening of the isolation valves (see 4.a above). The shift supervisor's log (referred to as "area notes"), available electronically, recorded that the naphtha stripper level was lowered. The shift supervisor stated that the block valves isolating the naph- tha piping might have been leaking. 5. February 13 and 14: During the night shift into the morning of February 14, the operators lowered the level in the naphtha stripper on four different occasions. After the fourth occur- rence, the naphtha flow control valve (valve J) was left open so that the naphtha could flow through the pump to storage, thus preventing the stripper from refilling. 6. February 16, Tuesday: The No. I operator attempted to drain the naphtha piping from drain valves F and G on either side of the naphtha stripper level control valve. A hose was attached to the drain valves running to the ground level. No liquid was removed. The No. 1 operator informed the business team leader that the naphtha drain lines were plugged. 7. February 16 and 17: The job scope was reduced after it was determined that portions of naphtha piping could not be isolated to allow replacement of all the piping while the unit was running. 60 Tosco inspectors reevaluated the thickness data and concluded that the portion of piping between the naphtha stripper level control valve (valve D) and the naphtha stripper did not need immediate replacement. 8. February 17, Wednesday a. The maintenance supervisor observed a small stream of naphtha intermittently draining from the point of the original leak. The line felt warm to the touch, and the maintenance supervisor assumed that the block valve (valve A) on the naphtha piping near the fractionator was leaking from the fractionator.The operator logbook recorded that isolation valves were again retightened (valves A and B). b. The No. 1 operator opened the drain valves (valves F and G) on either side of the naphtha stripper level control valve (valve D). When no flow was observed, the operator used a welding rode to attempt to clear the plugging in the drain lines. Again, no flow was observed. It was recorded in the logbook that the drain lines were plugged and could not be cleared. c. The failed attempt to drain the naphtha piping was commu- nicated by two No. 1 operators to the operations supervisor and the maintenance supervisor. The operators presented a plan to shut down the unit if the plugging could not be cleared. The operations supervisor initiated a request for maintenance workers to clear the drain lines (connected to valves F and G). d. Maintenance personnel began to sketch and detail the specifications of the naphtha piping for replacement. 9. February 18, Thursday, noon: Maintenance workers were in the unit to "unplug 1-inch drain valves (valves F and G) and drain the 6-inch naphtha piping on the fractionation tower." After repeated unsuccessful attempts to drill out the plugged drain lines near the naphtha stripper level control valve (valve 'The use of a wire or rod to unplug a drain line is an unsafe procedure(Amoco, 1984, p.49), 61 D), the reaming device broke. The safe work permit was marked as "job not finished." 10. February 19,Friday a. In the maintenance work schedule report for the following week, the maintenance lead planner requested a crane to remove naphtha piping for Tuesday, February 23. b. 12.05 pm: In response to unsuccessful attempts to unplug the drain lines, a safe work permit was issued to remove a short piping spool piece downstream of the naphtha stripper level control valve(between valves D and E). This work was directed and witnessed by the maintenance supervisor, who signed into the unit for 2 hours to oversee the work. c. The spool piece (between valves D and E)was removed. The block valves(valves C and E)were not locked out. Block valve C was observed by the maintenance supervisor to be jammed partially open. The spool piece was not drained, nor was isolation of the block valves verified prior to removal. The spool piece was full of semisolid material, which plugged the line. A blind flange with a drain valve (valve 1; Figure 4) was installed on the downstream side of the naphtha stripper level control valve (valve D). No attempts were made to drain the line after this activity. The safe work permit was marked "job not finished." 11. February 22, Monday a. The operations supervisor prepared a permit readiness sheet with input from the maintenance supervisor. The sheet stated, "Bigge, Interstate Scaffold, Tosco and Faust personnel to drain and start removal of naphtha draw piping." This document was available electronically and sent to the shift supervisor. b. The No. I operator observed the leak reoccur at the original location. The naphtha piping felt warm to the touch. The shin supervisor was brought up to the deck to observe the leak. 62 c. A hot work permit was issued to cut out a section of the deck on a platform on the fractionator tower, 107.5 feet above grade. To contain the naphtha while the cut was made, a plug was placed in the perforation of the piping where the leak had occurred. The maintenance supervisor directed the plug to be removed upon completion of the hot work. d. The maintenance supervisor and the maintenance lead planner arranged for a vacuum truck from a contracting company for the next day. e. An operator prepared a permit during the nightshift to"Erect scaffolding, drain and remove piping(naphtha draw)." 12. February 23, Tuesday a 7:20 am: A vacuum truck from Waste Management Industrial Services arrived at the unit. M b. 7:40 am: Tosco maintenance employees arrived at the unit to "drain and remove naphtha piping." c. 8:00 am: A Bigge crane operator and rigger arrived at the unit to assist in removing the piping. d. 8:00 am: The operations process engineer visited the unit and discussed the naphtha piping replacement. An operator told him that several draining efforts had been unsuccessful and that the reaming device used to clear the drain lines (connected to valves F and G) had broken on February 18. The engineer suspected that the naphtha piping isolation valves were leaking. He was aware that naphtha was in the piping. e. 8:30 am: A maintenance worker and a No. I operator reviewed the job site and signed a safe work permit prior to the start of the job. f. 8:40 am: The maintenance supervisor entered the unit to supervise the naphtha piping replacement job. g. 8:50 am: A maintenance worker signed the work authoriza- tion permit. h. 9:19.9:26 am: Maintenance personnel initially attempted to remove naphtha from a drain valve (valve 1: Figure 4) in the 63 blind flange downstream of the naphtha stripper level control valve (valve D), where the spool piece was previously removed. No material was observed coming from the drain line (connected to valve 1). i. The workers attempted to wedge the flange open just upstream of the control valve (valve D). No material was observed coming from the flange. j. 9:40 am: Before the line was drained or isolation was verified, maintenance workers, the maintenance supervisor, and the No. I operator ascended the tower to begin cutting the naphtha piping with a pneumatic saw. The maintenance supervisor showed the workers where to make the initial cut into the piping. k. 9:50 am: The maintenance supervisor left the unit. 1. 10:15 am: The maintenance supervisor returned to the unit halfway through the first cut into the naphtha piping. m. The first cut was completed at an approximate elevation of 104 feet above grade (Figure 6). The crane was used to remove the top 9-foot section of the piping. n. The maintenance supervisor directed a second cut on the naphtha piping at an elevation of 79 feet above grade (Figure 6). The cutting was stopped when the blade pierced the pipe and a small amount of naphtha began to leak from the line. o. The maintenance supervisor attempted to locate the liquid level in the line by tapping on the pipe with a hammer and listening to the change in sound. He believed that the naphtha level was just above the location of the second cut. p. A third attempt was made to drain the piping at the location of the flange upstream of the naphtha stripper level control valve (valve D). No material was observed coming out of the flange. The maintenance supervisor and a mechanic attempted to use a scraping tool to unplug the line at the flange; however, the tool did not penetrate the hardened material plugging the piping. q. 1 1:00.1 1:30 am: The maintenance crew broke for lunch, after which the maintenance supervisor discussed possible 64 drain points and directed the workers to drain the piping from the flange closest to the fractionator (flange 2). r. 11:45 am: The next attempt to drain was initiated at the base of the vertical run of piping close to the fractionator (flange 2), at an elevation of 38 feet above grade. Naphtha was drained into a plastic pan with the flow directed by plastic sheeting. The naphtha was suctioned from the pan with a hose connected to the vacuum truck, which was parked at ground level (Figure 4). S. 12:18 pm: Naphtha started to flow very rapidly from the line at the open end of the pipe. Not equipment surfaces most likely ignited the naphtha. The resulting fire engulfed workers on the fractionator tower, killing four men and seriously injuring another. 55 APPENDIX B: Logic free Diagram Tosco Fire, Avon Refinery Intermedste event Basioevent n evet event n 'And`pate gander eprnbd worlara«, tower oxygen, present Etbrta tolei* unplp drain vafxa fa bd 67 APPENDIX C: Executive Summary of The Hendrix Groin, Inc., Report This report documents the result of a technical review of documents associated with a naphtha leak and subsequent fire at the No. SO Crude Unit at Tosco Refining Company's Avon Refinery located in Martinez California and the corrosion related and mechanical integrity issues that contributed to the fire. The results of the review showed that: • The cause of the naphtha line leak precipitating replacement of the line was erosion-corrosion due to aqueous ammonium chlo- rides. The naphtha line leak, pluggage of the bleeder valves at the naphtha line control valve loop and erosion-corrosion of the bypass valve were all contributing causes leading to the incident. The control valve piping and bleeder valve pluggage and erosion-corrosion of the by-pass valve made the consequence of the incident greater, based on making draining more difficult and contributing to a greater amount of flammable liquid in the line than would otherwise be the case. The valve leak, the pluggage and the control valve erosion-corrosion were all due to the elevated levels of corrosive materials. • Inadequate desalter operation with heavy crude slates directly contributed to the naphtha line corrosion by allowing excessive water and hydrolyzable chlorides to enter the fractionator tower, forming corrosive, acidic water in the top of the tower. • Water slugs entering the tower, largely from inadequate dehy- dration of the crude feed by the desalters, caused tower upsets and water flooding of tower upper trays, resulting in water in sections of the tower where it normally would not be expected, including the naphtha draw line. However, there was significant available evidence to suggest the potential for corrosion of the naphtha draw line, including: (a) Tosco incident reports describ- ing desalter problems with attending consequences of plant wide corrosion, (b) documented corrosion of fractionator tower trays in the vicinity of the naphtha draw line, (c) previous incidents of corrosion in the naphtha stripper and bottoms piping and, (d) having to drain water from the fractionator tower reflux line. • Accelerated corrosion in the Main Fractionator and in associ- ated overhead equipment had been a problem since the early 69 1980's. Tosco did not modify their corrosion control program to address continued equipment corrosion associated leaks. Tosco's mechanical integrity and inspection program failed to predict and locate corrosion problems before they resulted in leaks or emergency on-stream repairs. It was unclear from Tosco's inspection documentation what schedules were in place to conduct thickness surveys on the Naphtha Stripper draw line. Tosca had classified the line as a Class 1 line,with a maximum next inspection interval of 5 years,based on API 570, Piping Inspection Code. However, in their Piping Corrosion Manage- ment System (PCMB) documentation, (8/77/99) they appeared to list as much as a ten-year next inspection interval for the line.An inspection deficiency contributing to the incident,was the lack of a sufficient PCMS database at the time of the incident permitting corrosion rate determination. Failure of the corrosion control and corrosion monitoring programs to prevent events leading to the incident by practicing predictive inspection were symptomatic of. (a) inadequate management oversight, (b) inadequate or non existing documentation supporting STAR-PSM-j, Mechanical Integrity, (c) insufficient inspection data documentation, (d) lack of proper inspection execution and, (e) inadequate communications between the mechanical integrity department and Unit 50 operations personnel. 70 R r Gh r tS3 til .r G7 O v W W z W z w P co LU ♦•ut 1 "O+ot the functions Ot tj-.C. of Inclustrial Pelzitlions is to fostf-i-, pron-iote, und dcvoloP the vx-lfarc,of 1 woe.ems c!'5 of calkfornia, to im.prove IfIcir""'Orkinq ccmd:tion.t and 110 0CiVX--rQ OICir OPPC)-ILjni- lics for proliLlbire f mployfln-c-l-it", On Ole DIR%vor«.,,'porlal=mp Gmaza:v Director's Preface .......................... . .........2 Labor taw Division of labor Standards Enforcement(DLSE).........................7 Industrial Welfare Commission(IWC) ................................10 p v-• GA Workplace Safety and Health Division of Occupational Safety&Health(DOSH)........ . 12 Occupational Safety&Health Standards Board, ........................ 21 Occupational Safety&Health Appeals Board ..........................23 Go Apprenticeship Training Division of Apprenticeship Standards(DAS) ...........................25 California Apprenticeship Council(CAC) .............................30 i.1 iY W California Department of Industrial Relations 2000 - 2001 Biennial Report z Workers`Compensation Division of Workers'Compensation(DWC)..... ..:34 Workers'Compensation Appeals Board(WCAB) . r .41 Industrial Medical Council(IMC) ................... , #2 J Self Insurance dans(SIP).......................... 44 Commission on Heafth&Safety &Workers'Comperaatksn;(CHSWC) ................. 45 ■ Statistics and Research �Are Division of Labor Statistics&.Research(DISK) .......... 44 Mediation and Conciliatk)n, State Mediation&Conciliation Service(SMCS) ..... Historyof DIR.................................................32 Office of the Director ............................ ............56 Division of Administration .......................................S8 DIR Publications ...............................................60 DIR Office Locations ............................................62 DIRProgram Management .......................................64 DIRProgram Functions..................................inside beck cover Photography:All photos by Robert Gumpen acgK past 2 by John s.+anda,bwuW)ones Vasography, and archive p"os an paM 32.33. Graphk Desigre MOM hear Ana!sura Gutmin,Aniun vbual communkanons Gawp Table of Contents 1 tr txYw . 5 i 2 ti x r e M V t —vid nn Smith ✓ s t t] 1111" t 1} Y t t111 ( t i ' wt; •:i..�t1[t. Ilii s..Ut �,., .I], ? It ,!�1},.,L'+' I] t t t.: ,�1 .31"•. 2tas ?;.6ii..t ilu _,i�.,n. tti;,t al.tl•rcl:1. .1ni:15tF1,,1_tlat: ,x•.u3,+•,,,€:._� ,t,..11 1 ,.)�),t: 11. rtraj tv-•ras, .a.. 7 11 rl Workplacc rights I.3 , .tr`. — , ..t ...., .t.1.i;.. -i1..s. I,1.;t,La. •itarl" ........... ...rv.,s.xrf t ,ass,tnmu_�a.,✓!,ryvyv,w•h•.. -n�-�+,xKi'MA_ _. t� IWC�y �yWyyy t� legislation that further secured the rights of some of of its fatalities.Programmed inspections allow Cal/OSHA LU California's most vulnerable workers. staff to remedy workplace safety and health hazards {) Protective legislation for farm workers increased verifi- before they result In injury or death. cation of farm labor contractor licenses,and established a Cal/OSHA launched its rapid response team in Los LU program of state and local enforcement units to prosecute Angeles during 2000 in cooperation with the district attor- to violators of labor law.Other legislation allowed a portion ney's office to more accurately reconstruct the events lead- Z of farm labor contractor licensing fees to be used for dam- Ing up to serious workplace Injuries and fatalities.Rapid H ages stemming from tabor law violations.New legislation _ response team members,charged with promptly Investl- Z also Instituted for the first time an employee labor rela- gating workplace death,serious Injuries or employers who UJ tions process for backstretch workers employed by the knowingly,negligently and repeatedly violate safety > state's racetracks and provided for adoption of housing orders,prepare'documentation for the district attorney in Q standards by the California Horse Racing Board and annu- cases that may require prosecution under California labor V) al Inspections of that housing.Other legislation addressed law.Team members--who receive special training in 0 the working conditions,hours and pay of sheepherders investigative skills.—must already have shown a breadth of J employed in California.In addition,the Legislature enact- knowledge that prepares them for a job that often requires ed the Displaced Janitor Opportunity Act and set require- a 2417 commitment. ments for the retention of employees by janitorial or In 2000,Califomla extended Its commitment to work. building maintenance services and subcontractors by a place safety and health by creating a young worker safety •sell■ successor contractor for 60 days when the previous and health resource network DIR has contracted with the #i employer had lost the contract. Labor and Occupational Health Program(LOHP)at the University of California,Berkeley to establish a resource Workplac0 safety and health center that will provide Information and technical assis- CaIIOSHA expanded its efforts to increase compliance and tante to young workers,educators,employers and parents to prevent accidents and fatalities In high-hazard Indus- to support workplrce safety.The center has developed a tries by launching In 2000 the Construction Safety and Web site at www.youngworkers.org that contains safety Health Inspection Project(CSHIP),counterpart to its suc- tips relevant to Industries such as construction,retail, cessful Agricultural Safety and Health Inspection Project restaurant,hospitality and agriculture that employ large (ASHIP)mounted in 1994. numbers of Califomla youth,particularly during the sum- Both Industries employ a significant percentage of mer months.In addition,the department works with the Immigrant workers not necessarily knowledgeable about governor's office to issue an annual proclamation deciar- California workplace tights.The construction Industry,for Ing May as Safe Jobs for Youth Month.The proclamation example,which employs approximately 5 percent of the and month serve as a focal point Immediately preceding state workforce,nonetheless accounts for up to 20 percent the entrance of young Californians into summer jobs for Director's Preface 3 .....,.. .......v�..'-r--Y:.."':'.^Y.`...'.v.+�+.e✓'-^.�".'vr+`w;w"°y�u..a....+.wvu.r..e.w}�vxwa•�s 1�- 0) Iiw Vs department efforts to promote young worker safety and child care apprenticeship.In 2001,the division collaborat- UJ health.Along with DIR,LOHP has coordinated particips- ed with employers,labor organizations and other govern- (� tion In this effort among trade associations such as the ment programs to host an apprenticeship fair at the site of > California Chamber of Commerce and the California the Rome the Riveter World War Il Home Front National W Restaurant Association,among other government programs Historical Park in Richmond that drew at least 20 repre- In affiliated with the Employment Development Department sentatives from apprenticeship programs and almost 600 Z and the Department of Education and among the PTA and high school students from the Contra Costa Unified LW i— labor organizations such as the California Teachers School District Z Association and California Federation o{Teachers. Since 1999,enrollees In California apprenticeship pro. LU Meanwhile,10 new California sites were inducted ln�o grams have jumped from 60,403 to 66,152,a clear indica- > the Callfomia Voluntary Protection Program tion that department efforts to promote apprenticeship (Cal/VPP)–­bringing the total number of inductees to through new collaborations with the Employment 20—because of their rigorous commitment to workplace Development Department's one-stop centers,the 0 safety and health.Cal/VPF,a voluntary program initiated Workforce Investment Board,publication of the California by Cal/OSHA and imitated by the federal government,is Apprenticeship Council's apprenticeship guide for educa- aimed at recognizing those employers who achieve a high tors and through consistent maliings to high schools level of excellence in establishing safe and healthy work- throughout the state arc bearing positive results. 'icer places.inductees during the last two yeah Inducted the s gas first construction company,the Concord-based Swinerton Workers'compensation r�i Builders,in a pilot project Voluntary Protection Program. Over the last two years,the Division of Workers' Swinerton and the unions representing its workers,the Compensation has worked with constituency groups to operating engineers,carpenters and laborers,was the fiat reform the workers'compensation system based on con- construction company Inducted under requirements and stituency needs,studies that recommended greater effl- qualifications that recognized the mobile nature of con- deny In the system and in response to the consolidation struction projects. of the workers'compensation Insurance industry that resulted from its deregulation in 1993. Apprenticeship By early 2002,the Legislature enacted and the gover- in the Division of Apprenticeship Standards,apprentice- nor signed a workers'compensation reform bill,Assembly ship standards were strengthened and apprenticeship pro- Bill 749,authored by Assemblymember Thomas Calderon motion more targeted to underserved populations,a task and Senate Pro Tem John Burton.The legislation increases facilitated by the issuing of a gubernatorial proclamation benefits for Injured workers.By 2006,the maximum bene- each year declaring October as Apprenticeship Month.The fit level for temporarily disabled workers will be indexed, division,for example,Is working with child care providers preventing the erosion so common during the 1990s.The and educators to Increase Its standards and Implement a legislation contains reforms that control prescription drug 4 I DiredoeS Preface �M y , 1 tl Yob V r Cb to til costs and support medical cost containment through med- ment opportunities of Californians over the years.Now, W foal cast management programs that maintain quality care every worker employed In Califorrda---whether document- (} for Injured worker AB 749 also Incorporates the best ed or not.--is protected by a minimum wage of$6.79 per > thinking of studies that show that an Injured worker recov hour and with some few exceptions,daily overtime. W ers best financially and physically when he or she returns Apprentices can expect quality training and protection for to work as soon as medically.posslble.The legislation offers their hours and working conditions.Cal/OSHA has z z economic Incentives such as wage subsidies for early return emerged as the premiere state health and safety program H to work,premium rebates for sustained return to work and In the nation,with Its recognition of outstanding employ- z reimbursement for workplace accommodations. en through CaINPP,Its free-foe-the-asking consultation W Finally,the legislation creates a special state unit with- service and hefty fines that successfully serve as deterrents > In the department to educate employers and health care to those few employers who Ignore the state's workplace professionals about the best ways to help injured employ- safety and health laws.Legislation has improved the bene- ees return to work as soon as possible. fits of the workers'compensation system,while mitigating `e employer costs. J Promoting opportunities Our achievements are many and due In large part to As DIR approaches its 75th anniversary,we renew our cam- the efforts of DIR staff,committed and skilled workers ZN Zmitment to California workers and employers to ensure. employed throughout the state in making a difference in "N to their workplaces are lawful,safe and healthy.We renew our the lives of Callfomlans. S not determination to Improve workforce training and Increase Opportunity Is the promise that nourishes individual I opportunities for young Califomians,by alerting them to and community prosperity in Callfomla.Along with every apprenticeship opportunitles.Finally,we renew our efforts Californian with dreams,ambition and hope,we at DIR to improve the workers'compensation system so It serves pledge to continue fostering opportunity In California both injured employers and their employers. workplaces. DIR,formed in 1927 when the precursors of the diva- slons of Labor Standards Enforcement,Workers' Compensation and Occupational Safety and Health joined with the Industrial Welfare Commission and the Industrial Accident Board,has overseen consistent improvements in the working conditions and employ- Director's Prerace s rt i F • r 'r. apprenticeship , Divi',ion of App c ;.iccship Standoids California .Ap rtr2'-ice-nip Council s ti Divisic n of Appreriticesh1p'`Standards DAS California apprenticeship system The Division of Apprenticeship Standards adminis r`�� ��:�� �� x „� ters California law governingstandards for wages, aliOfna�l�t�t7tiZS�ii��rOQr811T15 b/ �1U ��� gr'� � hours, ie working conditions and training required for all state registered apprentices,leading to a state issued Constnxtbn 18% Manufacturing 21% certificate of completion when all aspects of the appren- .~- services 35% 0) tice's training are satisfactorily completed and Journeylevel r. status achieved.DAS annually awards completion certtA- cater to the graduates of the 1,568 currently active appren- to ticeship programs In more than 200 occupations. 0 DAS goals are twofold:to match the needs of work- pop ers—for the skills to get and keep a decent paying Job-- with those of employers—for motivated workers with the Public Adrnirdstratkn 1d% skills to do the Job,and to strengthen the apprenticeship Re as Trade 6% Transportation&tnsities 2% (1J 0 alliance among industry,labor,education and govern- Other 2% ment for recruiting workers and teaching the skills they and their employers need. to Professional staff of the division establish new appren- tice registration procedures,a wage progression for appren- ticeship programs to any of the 800 recognized appren- tices,and completing the elements comprising apprentice- (U ticeable occupations.DAS works with the apprenticeship ship program standards.They arrange for payment of vet- Z program sponsors and monitors their on-the-job training erans training benefits to eligible apprentices,and assist in coupled with related Instruction to Insure the high sten- outreach activities to attract apprentice applicants. i dards set by the division. The 66,152 apprentices in California are maintaining a time-honored system that has proved adaptable to change. Consulting locally on new apprenticeships As some traditional Jobs disappear,new high-tech and From offices around the state,DAS consultants work local- service Jobs take their place,and California's apprentices ly with employee--and their collective bargaining part- are achieving a higher level of skills than ever before to '-3 nets where applicable--to develop new apprenticeship earn a riving in the glossal marketplace. programs,determining the length of training and specific skills nece=ssary to perform at the level required in the Keeping track %out occupation.They help the new program sponsors locate The dtvislon's program planning and review unit reviews irR and make arrangements with local education agencies to all new and revised a • � 8 PP�tiP program standards for provide the classroom instruction that augments the on- compliance with California apprenticeship law.The the-job training. records unit fulfills a vital role as centralized record keeper DAS consultants can also help new sponsors with the for active apprentices statewide,in addition to graduates s��taa�??n��daar�rds for their program operation,as well as appren- in the last 20 years or more. `Tatar 49,468 52,445 60,443 63,859 66,152 flora-minority 24,960 25,923 28,882 29,876 29,926 (50.5%) (49.4%) (47.8%) (47.8%) (45.2%) Minority 24,508 26,522 31,521 33,983 36,226 (49.5%) (50.6%) (52.2%) (53.2%) (54.8%) .. Women 5,266 5,006 5,422 5,353 4,920 (10.6%) (09.5%) (09.0%) (08.4%) (07.4%) Apprenticeship Training ( 25 ` standards necessary for preparing apprentices for the Contributlrig to Une-Stop Genters s w ? «,,. ,:a,s,m s#... „. :w . . workplaces of 41te future,and to prevent apprentice California's apprenticeship system is one link of the California Workforce exploitation by employers or program sponsors. Investment Board's(CWIB)federal Workforce Investment Act(WIA)One- The first programs for audit were randomly selected in Stop Centers located throughout the state.The centers provide a full range September 2000.By Sept.30,2401,149 audits were initi- of services for job seekers and employers.CMB staff are working with DAS, ated,of which 56 were simplified audits of programs with the California community colleges and Department of Education to fink fewer than five apprentices,and the rernainder were full apprenticeship programs with training and services offered through the audits.As a result,31 of these programs were cancelled one-stop system. due to inactivity.By Dec 31,2001,11 final audit reports DAS provides the CWIB with apprenticeship promotional materials such as Were completed,34 proposed reports were being finalized, Opportunity is Knocking posters,The Apprentice newsletter and the video 28 other audits were in progress and 21 additional pro- ti grams had been randomly selected for audit. +— Apprenticeship:Coiffomio4 Best Kept Secret. CY) — Public works enforcement DAS also provides statistical reports to the federal DAS verifies apprentice registration and'status,and 8 Apprenticeship Trains Employer enforces requirements of Labor Code section 1777.5 man- O pp p ng, p oyer and Labor Services,the 0 U.S.Veterans Administration and other Interested parties. dating employment of apprentices on all public works CD projects.DAS monitors these projects by investigating the Auditing to malntaln high standards complaints filed with the division.When an investigation LL} Recent legislation strengthens the regulation of appren- reveals a violation of the law,DAS may assess a civil U ticeship programs In California by providing for audits of penalty or debarment for up to three years,depending upon the seriousness or recurrence of the violation. DAS-approved Programs to ensure they meet the high 111 From Jan.1,2000 to Dec.31,2041,the division t/) received 1,209 complaints alleging violations of appren- i` Z ticeship law on public works projects.Of the total,232 W complaints were withdrawn or dismissed without merit, z and notices of violations were issued on 39.Three debar- W menu were Issued. > Apprentice complaints The division's Investigations unit also handles complaint or appeals filed by apprentices regarding their program d sponsors.Following conclusion of Investigations and hear- Ings,a formal detennination Is Issued by the administrator of apprenticeship,DIR's director.From Jan.1,2000 to Dec.31,2001,the division received 37 complaint ffom ■E j apprentices who charged that actions by their program r;i sponsors were unfair or unreasonable,ranging from selec- tion procedures to dismissal from a program.Of these cases,12 were dismissed for lack of merit or withdrawn by the complainant.One case is set for hearing and another, 1s on appeal to the California Apprenticeship Council. The remaining cases are still under investlgation. Training fund created by legislation Assembly Bill 2481(Romero)revised statutes on coilec- lion and distribution of apprenticeship training contribu- tions received from employers on public works project. DAS collects training contributions and deposit them Into a new Apprenticeship Training Contribution Fund.At Y the end of each fiscal year,commencing In 2002,the dlvi- r Sion distributes grant funds to approved apprenticeship . 26 ApW&Wceship Training .:.,..�.,....:ww.u--...,.,-.�-,.-.c..-r�--,...✓..:x ..._.: . 1-..-:.�,:s=X+.n*+-.T.4. -_,=Ati,csi}.�w;:..'w'.`r,'fli-Ce.n::.iv7na'w«:.,a...:.w.<..::-x..•s-w:✓: Aoste the kivetvir leaves legacy for tradeswomen Promoting women's participation in construction trade They put me 40 feet down in the bottom of the ship to be a apprenticeships is the goal of a coalition of labor and govem- tacker.1 filled the long seams of the cracks in the ship comers ment groups,including DAS,as they pian events aimed at full of hot lead and then brushed them good and you could local high school girls and comnwnity college women.Onesee how pretty it was.The welders would come along and event was a celebration at the newly-dedicated Rosie the weld so It would take the strong waves and deep water and Riveter Memorial In Richmond,California. heavy weight.I liked it pretty good." Dedicated in October 2000 during a ceremony that attracted The celebration began a statewide campaign to increase the 100 Rosles,the Rosie the Riveter memorial honors those six number of women in construction trades apprenticeships and f` miftion women who during World War 11 traded in their pots, coincided with Women's History Month.Along with guided pans and brooms'for wrenches and welding rods"to support tours of the monument,the event offered apprenticeship � the defense industry-:The Kaiser shipyards in:ttichmond information booths and hands-on demonstrations in welding, tD served as a magnet for the migration of women from home heavy equipment operation and ironwork A program fea- " to workplace. tured Rosies,tradeswonren and the premiere of an oral histo. O This memorial,elle only one in the nation honoring women's r5 film about women employed in the defense Industries durof 00contributions to the World War it home front,helps gumirIute log Works War 11. the lives of defense Industry workers such as"Katie Grant.She The celebration was sponsored by Tradeswomen Inc,-Contra moved with her husband and Want daughter from Oklahoma Costa Central tabor Council,City of Richmond,State to California in 1943 to pack fruit before ending up at the, Building and Construction Trades Council of California,the" Richmond.shipyards while her husband served in the Pacific Department of Industrial Relations and DAS,the Employment," W with the Marines... , Development Department and Richmond Works,One stop, Downtown,U.S.Department of tabor Women's Bureau. `I worked the graveyard shift 12-8 a.m.in the shipyard,' W Region IX,Glazlers Local 718 and the law firm of Kazan; Grant wrote in.a short.memoir.'I took lasses on how to F- McClain,Edises,Slnon.and Abrams. z weld.I had lead*w gloves;feather pants;big hood,,goggles ' Wanda leather packet They saki you weld like you crochet W W J sea on 0 i r x .. AWenticesttip Training 27 programs in the craft and geographic area each serves. education and child development.According to a recent During 2001,training fund contributions from contractors study by the National Economic Development and Law on public works jobs totaled$1,142,149. Center,total employment in the California child care industry exceeded employment levels in legal services and job training for veterans computer and office equipment industries.Programs DAS monitorsjob training programs for veterans,under a developed under the new standard are designed to meet federal contract with the U.S.Department of Veterans the demand for skilled,trained child care professionals. Affairs,to make sure veterans receive their educational benefits.The federal/state partnership data back to the GI Developing electrician certification program Bill of Rights signed into law in 1944.In its advocacyrole legislatively required to establish and validate minimum the division Is responsible for: standards for the competency and training of electricians •Program approval,evaluating the training quality through a system of testing and certification,DAS00 according to state and federal criteria,revising to appointed an advisory committee that submitted recom- remain current with rapid technology changes and mendations for the program's implementation. to school-to-work programs in June 2001 proposed regulations were mailed to all co •Facility oversight,classroom and training center visits electrical contractors In the state.DAS held a 45-day pub. to determine compliance with state and federal regula- lic comment period and public hearings for Input,impan- co tions and evaluate new programs eled 36 subject matter experts and appointed seven mem- bets to a subject matter expert executive committee,all of 111 •Ltaiswt acting as the state Ralson between military whom met regularly to produce a test bank of questions. (J Installations and schools,employers,labor groups and Pilot testing was held in July 2001 throughout the :> state veterans organizations to provide information state Development and validation of the test is complete W and promote GT Bill use DAS is working on modifications to the proposed regula. •Contract management,establishing a plan of opera- tions,vendor selection for the test administration portion h Z tion,performance standards and employee qualifica- of the certification process,and—with assistance from DfR U.) tion standards to ensure effectiveness,and providing information servicers---developing a database to help _ required reports. process the thousands of applications.Testing for certifica- tion Is planned for several locations around the state dur- Expanding child care apprenticeshipsg the summer of 2002 Boosted by a$350,000 federal grant,DAS is expanding and W Improving Callfomla's child care apprenticeship programs 0 W in response to the well-documented shortage of employees Onfrom a --i In the early childhood field.The division Is receiving the tittly input of members of the child care industry,labor organa- rationss,child care advocacy organizations and state regula- `mitt tory bodies.The current DAS apprenticeship In chlld care Iran requires 2,000 hours of on-the-job training and 120 hours i per year of related and supplemental coursework. The newly established Child Care Apprenticeship Advisory Committee advises DAS on issues such as licensing standards for staff.employed at publicly and privately fund- ed licensed child care centers and family day are homes, Integrating educational standards with the registered child tare apprenticeship standards,and addresses wage,benefit and longevity concerns of workers and employers at child care facilities.The committee also advises DAS on establish- ing career ladders among the child are occupations and on proposed expanded apprenticeship starjdards. DAS expects the new state standards to meet or exceed the federal child care apprenticeship standard of 4,000 hours of on-the-job training and 144 hours per year of related and supplemental Instruction in early childhood 29 I Tra1.kV t ` The foundation to, California's apprenticeship system �Y x� @ K 'I Jill Ii . , :,3 c I An", i o.h. i -P� t k t s �f } q, t :. Cailifornla Apprenticeship�Cc�unc�l QAC Apprenticeship program policy stablished by the 1939 landmark Shelley-Maloney Increasing graduation rates while giving students expand- Apprentice Labor Standards Act,the California ed career options. Apprenticeship Council sets policy for the DWWon With CAC,DAS developed a strategy to make appren- of Apprenticeship Standards(DAS).The 17-member coun- ticeship opportunities avallable to high school students, cil is comprised of six employer,six employee and two expanding the apprenticeship concept beyond Its tradl- public representatives appointed by the governor,plus tional forms and participants.Pilot programs partnering r one representative each of the chancellor of the California schools,students and businesses introduce a proven career community colleges;superintendent of public instruction, system,while businesses gain access to a work force of to and director of industrial relations as administrator of energetic and motivated young people. apprenticeship.The DAS chief serves as secretary to the Encouraging students to stay In school and graduate, council,and the division prcMdes staff assistance to the the program begins preparing them for transition Into CAC and Its subcommittees. selected career fields through part-time,paid on-the-job The council meets quarterly in different lodes tratrting while they are still in school.The apprenticeship W around the state to address Issues affecting apprenticeship agreement outlines job-specific tralrung to be provided by - in California: employer and school.Upon graduation,the student can- cc • Receives reports from the DAS chief and other cooper. tinues In the apprenticeship program with full-time fA ating agencies employment and further classroom Instruction in the Z •Provides policy advice on apprenticeship matters to community college system or adult education until the the administrator of apprenticeship term of apprenticeship is completed. z •Ensures selection procedures are Impartially adminis Guiding educators UJ tered to applicants Published in January 2001,t7rfmtatfoar to Apprenticeship: •Conducts appeals hearings on apprentice agreement A Guide for Educators was developed at the Initiative and disputes new appremioeshlp standards for approvat, under guidance of the CAC.The council's School-to- and apprenticeship program administration Career/Apprenticeship ad hoc committee was given WJ •Adopts regulations carrying out the Intent of appren. responsibility for producing this booklet that Introduces ticeship IegWatlon. educators to career opportunities through apprenticeship training for young people. `tails School-taCareer/Apprenticeship The guide presents coarse outlines for cvrdculum sup- M iia The CAC Is represented on the employer/labor committee porting apprenticeship opportunities for students and of School-to-Career,a network of local partnerships includes a list of apprenticeable occupations,detailed Involving parents,educators,business,labor and commu. information on apprenticeship training and other sugges- nities in a method of teaching that prepares students for tions for preparing students for an apprenticeship program college and the job market by Integrating academic stud- The booklet has been distributed to thousands of career les with real-world applications and work-based learning counselors and other school staff throughout California. experiences.Work-based learning includes lob shadowing, Interning with local employers and organizations,and participating in school-based business enterprises. School-to-Carm/Apprenticeship differs markedly from other work experience programs:all on-the-lob training is paid,and the agreement signed with the employer is a commitment to continued employment and training upon the student's graduation.Callfornia'a apprenticeship training system is a natural fit with school-to-preer,eas- ing the transition from education to employment and 30 Apprenticeship Training