HomeMy WebLinkAboutMINUTES - 12032002 - D2 TO: BOARD OF SUPERVISORS Contra- .,.
ni Costa
FROM:' Dennis M. Barry, AICP, Community Development Director CoUntv
William B. Walker, M.D., Health Services Director
DATE: November 12, 2002
SUBJECT: 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 any testimony offered on the subject amendments to the Industrial
Safety Ordinance (ISO).
2. ADOPT the proposed amendments included as Attachment A.
3. DIRECT staff of the Health Services Department, Hazardous Materials Division, to
provide a staff report to the Board of Supervisors in November, 2003 regarding the
progress and implementation of the Certificate of Equivalent Training and testing
provisions of the Ordinance.
4. DIRECT staff to file a Notice of Determination with the County Clerk.
CONTINUED ON ATTACHMENT: x YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COM MI E
APPROVE OTHER
SIGNATURE:
ACTION OF BOARD ON tier 3. 2.(X72_ APPROVED AS RECOMMENDED OTHER
SEZ Ai MOM yCR BDpm rjCa4JDMM= AM VOTES.
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE AND
UNANIMOUS (ABSENT CORRECT COPY OF AN ACTION TAKEN AND
AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD OF
ABSENT: ABSTAIN: SUPERVISORS ON THE DATE SHOWN.
Contact: Dennis M. Barry, AICP(925.335.1276) ATTESTED DEmmm 3, 2om
Randy Sawyer, (925.646.2679) JOHN SWEETEN, CLERK OF THE
cc: Community Development Department BOARD OF SUPERVISORS AND
Randy Sawyer, Health Services Department(via CDD) COUNTY ADMINISTRATOR
County Counsel
BY , DEPUTY
Industrial Safety Ordinance
November 12, 2002
Page 2
FISCAL IMPACT
Any costs associated with implementation of the amendments to the ISO will be
incorporated into the applicable fees paid by the involved stationery sources.
BACKGROUND/ REASONS FOR RECOMMENDATIONS
On November 5, 2002 the Board of Supervisors considered proposed amendments to the
ISO regarding contractor worker skills training and testing, oil refinery safety training and
skills testing, drug and alcohol testing and contractor safety records. The Board
introduced an Ordinance amending the ISO and directed staff to return on November 12,
2002 for the Board's consideration and possible adoption of the Ordinance in final form.
Attached as Attachments A and B, respectively, are the final form of the Ordinance as
requested and a marked version indicating modifications in redline/strikeout.
In addition, the Board directed that staff of the Health Services Department, Hazardous
Materials Division, return with a staff report to the Board of Supervisors in November
2003. That staff report will include the following:
1. Progress of the development of the test provided under the Certificate of Equivalent
Training(COST)provisions and the status of any submittals and approval of tests by
the California Apprenticeship Council; and
2. The progress of the development of the process for the issuance of a COET by a
two-year or four-year public college.
The Board at that time will determine any appropriate action to be taken after review of the
progress report, consistent with the objective of providing a level and fair playing field for
all qualified workers.
The Board had also requested staff to evaluate comments to be provided by the California
Contractor's Alliance. Attached as Attachment C is a letter of November 7,2002,from Mr.
Craig Andersen of Andersen, Bonnifield &Cottle representing the Alliance. Mr.Anderson
declines to provide further comment for staff evaluation but urges the Board to consider
the position of the Alliance as indicated in his letter.
-�5
DECEMBER 3, 2002
On this date,the Board considered adopting recommendations of the Hazardous Materials
Commission("Commission") and the Public and Environmental Health Advisory Board
("PEHAB")concerning proposed amendments to the Industrial Safety Ordinance("ISO"),
and changes to the implementation guidelines.
The Board also considered adopting an ordinance to amend the Industrial Safety Ordinance
with regard to contractor worker skills training and skills testing, drug and alcohol testing,
and contractor safety record("Contractor Safety Amendment").
Silvano Marchesi, County Counsel,reported on legal issues pertaining to the California
Environmental Quality Act and recommended that an environmental impact report CUT')
be prepared if the Board was considering adopting the Contractor Safety Amendment.
The following persons presented testimony:
Greg Feere, Contra Costa Building Trades Council, 935 Alhambra Avenue, Martinez;
Tom Adams, Contra Costa Building Trades Council, 176 Valdeflores Drive, Burlingame;
The Board discussed various issues relating to the Contractor Safety Amendment, including
consideration of economic impacts of out-of-state workers being employed at refineries
located in Contra Costa County.
Chairman Gioia MOVED and Supervisor Uilkema SECONDED the following motion:
The Community Development Department is directed to prepare an EIR on
the Contractor Safety Amendment in a timely manner;
Staff is directed to study and report on the impact of out-of-state workers on
fiscal issues in Contra Costa County or the environment(which could,be an update
of previous studies conducted on the subject), said studies to be conducted to the
extent feasible in conjunction with the EIR, otherwise parallel to the preparation of
the EIR; and, provide a history of refinery assessments;
The County Administrator is directed to explore funding alternatives within
and outside of County government for preparing the EIR; and report back to the
Board in 60 days.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
1
17
The motion PASSED.
The Board discussed the Inherently Safer Systems Amendment to the Industrial Safety
Ordinance.
Supervisor Berber MOVED, and Supervisor DeSaulnier SECONDED the following motion:
Staff shall place the Inherently Safer Systems Amendment on the Board's
agenda for consideration at the same time the Board considers the Contractor Safety
Amendment.
The vote on the motion was as follows:
AYES: in, IV, I
NOES: II,V
ABSENT: None
ABSTAIN: None
The motion PASSED.
The Board considered the recommendations of the Commission and PEHAB pertaining to
the Industrial Safety Ordinance. The staff report was given by Michael Kent.
FOLLOWING DISCUSSION BY THE BOARD:
1. Supervisor Uilkema MOVED and Supervisor Glover SECONDED the following motion:
County Counsel is directed to assist PEHAB in preparing an amendment to
the ISO pertaining to incident investigations (Section 454-8.016 (A)(9)), to ensure
that facilities investigate the largest number of incidents that may lead to an impact on
the surrounding community and environment, after PEHAB completes its
consideration of what amendment will be recommended.
The vote on the motion was as follows:
AYES: II,in, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
2. Supervisor Uilkema MOVED and Supervisor DeSaulnier SECONDED the following
motion:
The Board endorses the Commission's recommendation that the guidelines to
facilities include direction to the facilities to make reasonable and timely progress
2
. - , --
towards concluding root cause analyses and provide an update to the County every 30
days.
The vote on the motion was as follows:
AYES: 1I, in, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
3. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
The Health Services Department,Hazardous Materials Program Division,
shall develop definitions of the terms"Incident Investigation,""Safety Inspection,"
and"Incident Safety Inspection,"and report these definitions to the Board before
inclusion in the ISO guidance document.
The vote on the motion was as follows:
AYES: II, III, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
4. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
The Health Services Department,Hazardous Materials Program Division, is
directed to develop language recommending completion of future audits within one
year, and a table on recommended timelines for implementing the ISO. The language
and table shall be reported to the Board before inclusion in the ISO guidance
document.
The vote on the motion was as follows:
AYES: II, III, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
5. Supervisor DeSaulnier MOVED and Supervisor Glover SECONDED the
following motion:
3
The Health Services Department, Hazardous Materials Program Division, is
directed to develop a plan and schedule to complete the public information bank
required by the ISO and,by June 1, 2003,have electronic access available.
The vote on the motion was as follows:
AYES: II, III, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
6. Supervisor Glover MOVED and Supervisor Uilkema SECONDED the following motion:
The Board endorses changes in the Health Service Department, Hazardous
Materials Program's Public Participation Policy, to reflect the need for enhanced
public outreach,to make it more proactive, and to add staff as necessary to
accomplish this policy.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
7. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
County Counsel is directed to prepare an ordinance amending the ISO as
follows:
A. Amend section 418-8.018(A)by adding the following four
sentences immediately before the last sentence:
"Public comments on the Safety Plan shall be taken by the
Department for a 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 to all oral comments received and not
addressed at the public meeting."
B. Amend section 418-8.018(B)(4)by adding at the end:
4
"The Department shall respond in writing to all written
comments received during the 45 day comment period and to all oral
comments received and not addressed at the public meeting."
C. Make those housekeeping amendments to be recommended
by the Commission.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
5
Attachment A
ORDINANCE NO. 2002-
(CONTRACTOR WORKER SKILLS TRAINING AND TESTING,OIL REFINERY
SAFETY TRAINING ANIS SKILLS TESTING,DRUG AND ALCOHOL TESTING
AND CONTRACTOR SAFETY RECORD)
SECTION I. Section 450-8.0114 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 neve 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 ("NAILS") 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 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
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 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
ORDINANCE NO. 2002-
-2-
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 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.
(0) 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 administered at 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.
(B) 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,whether organized or unorganized, in
Contra Costa,Alameda, and Solano Counties. If a contractor attempts to obtain
Trained Workers from labor hiring facilities in Contra Costa,Alameda and Solana
Counties for two normal business days and is unable to obtain all the workers it needs,
ORDINANCE NO. 2002-
-3-
it may hire other workers only to the extent that Trained Workers are unavailable. In
the event of workforce reductions, a contractor shall layoff 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 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.
(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
skills, construction techniques and safety for that worker's Occupation within
the last 12 months 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
ORDINANCE NO. 2002-
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 I include the names of the employees,the dates of employment,the identity of the
StationarySource 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 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,
ORDINANCE NO. 2002-
1�2-e:�?
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 Proms. 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 reguirements_ofthis 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. 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.
(Orris. 2002 § 2, 2000-20 § 1, 98-48 § 2.)
SEC'T'ION M. 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
ORDINANCE NO. 2002-
-6- v
;i
of competent jurisdiction to be preempted by any applicable state or federal law, the Burd 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 BATE. 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
LrF:HA0Rn\F;�ISO r m«aamwt i i IZD2.lwpd
[SEAL]
ORDINANCE NO. 2002-
-7-
A-9-ej—-
Attachment B
MA D DRAFT
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 Cade 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) "Drag 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) "OR Refinery Contractor"means an independent contractor that provides labor
and/or services to Oil Refineries for new construction,maintenance, repair, or turnaround work.
(a) "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.
(Orris. 2002-_§ 1; 98-48 § 2.)
SECTION IL 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.
ORDINANCE NO. 2002-
-1-
November
002-
-1-November 5,2002(revisions before introduction] HA1iAZMAT\1ND0RD1110502,marlmd changes before introduction wpd
.ALLLl{iD DRAFT
(g) Contractor Safety. (1) Application. This section applies to 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 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
ORDINANCE NO. 2002-
-2-
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002-_2_November S,2002{revisions before introduction) , HAHAZMATANDORDU 10502,marked changes before introduction.wpd
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Council approved apprenticeship program shall be employed only in the
ApprenticeableOccupationfor 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
for that Occupationapproved 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,,.gpnstruptign techniques, and safety for
{ ;R
that Occupation within the last 12 months atirftapss :a 4 bona fide apprenticeship
program for that Occupation, or atm 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) 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,whether organized or unorganized, 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 worker s
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.
ORDINANCE NO. 2002-
-3-
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002--3-November 5,2002(revisions before introduction) H:\HAZMAT\IIdD0RDQ 10502,maelwd changes before introduction.wpd
see
MARKED DRAFT
(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
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 team"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 skills,
construction techniciues:.{and safety for that worker's Occupation within the last 12
months at bona fide apprenticeship program fclr that
fir;:>+}:•_} +: t h:
OcCupatio
,: #; or an tics seroin
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
ORDINANCE NO, 2002-
-4-
November 5,2002(revisions before introduction) H:\IIAZMATVND0RI71110502,marked changes before introduction.wpd
MARKED DRAFT
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
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
ORDINANCE NO. 2002-
. off-
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MARKED DRAFT
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 50/0 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. 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 M. 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 BATE. 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:
ORDINANCE NO. 2002-
-6-
November 5,2002(revisions before introduction) HAHAZMAT\TND0RD110502,m®rlmd changes before introduction.wpd
MARKED DRAFT
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:\HAZMAT\INDORD\110502,mmrlmd changes before introduction.wpd
ORDINANCE NO. 2002-
-7-
November 5,2002(revisions before introduction) HAHAZMATINDORD\1 10502,merlmd changes before introduction-"d
� --
11107/2002 18:27 FAI 928 828C148 ANMERSEN.EONNIFIELb ETAL I oo2
Attachment C
ANDERSEN, BQNNN'tFIELD & COTTLE
ATTORNEYS AT LAW
TELIPHCNCc 029)402.1400 ONE CORPORATE CtNTRE FACSIMILE:1921)025.0443
1 VZO MLLCFW rA®s ROAD•NUT[000
CCNCOM,CALIFORNIA 54670-6244
November 7, 2002
Mr. Randy Sswyet
Supervisor
California Accidental Release Prevention Program.
Contra Costs County Health Services Depattirnent
1350 Arnold Drive, Suite 142
Martinez, CA 94553
Re: Board of Supervisors Contractor Issues to be Considered Re the Proposed Ame)adments
to the It ustrial Safety Ordinance
Dear Nfx. Sawyer:
Our office represents the California Contractors Alliawe and we have based directed to responid
to ths Supervisors' request for a clarification of issues of concern regarding the. proposed
am=dments to the Industrial Safety Ordinance.
At the meeritig of the Contra Costa County ("County") Board of Supervisors ("Board") on
Tuesday, November 5. 2002, the propoud amendment, to the Indusuial Safety Ordinance was
discussed (Agenda Item DI,3), including a public hearing dursng which the California Concz`actars
Alliance("CCA") provided testimony. At the request of Supervisors Federal Glover and Gayle
B. Uilkema during the Board's dellbearratim of the item, CCA was asked to provide =ff with a
communication liAWg key issues far "con t and/or clariffeati�on prior to the next Board
menti ig." These items were to be addressed by yourself or other County staff members either
in advance of or in conjunction with the Board meeting that is scheduled for Tuesday, November
l2, 2002.
With all due respect to the Contra Costa County Board of Supervisors, our review of the entire
Ordinance, Including the proposed aunendments, reveals that the proposed amendments have
absolutely uothin,g to do with safety. Unfort:uxnately, our clients have been "led down the path"
by believing in the system., i.e., if they play an active and sincere rale and pa tidpate In the
process, that their concerns for safety and conti=ed economic viability of non-sipnatory bui]d4
trades contractors will eventually be addressed. Sadly, that is not the case. This Ordinance is
nothing but a building trades union preference agrectnem. It has no correlation to safety. It is
insit c-=at bent tr Supervisor John Gioia to continue to request input from our clients regarding
3.1/07/2002 10•.27 FAX 928 9250143 MNDERSEN,BONNIFTELD ETAL �13
Mr. Randy Sawyer
November 7, 2002
Page 2
"deficieneics or clarifications" relating to the Ordinance when the Crud result is that these responses
are directed to the building trade's counsel, Mr. Tema Adams, to draft appropriate revisions in an
attempt to nuke certain that the Ordinance will survive legal challenge. The goal of Mr. Adarns
and a majority of the Boarrd. of Supervisors is to enact legislation which precludes non-building
trades contractors and their employees from working in the rei'lneries. Again, it has absolutely
clothing to do with safety,
Trio record is clear that the eleven GCA companies, many of whom are signatory to non-building
trade unions,have superior safety records and have not been involved in any of the rment twenty-
seven plus major iucidew at the refineries. These facts are in the record yet the majority of the
Roard continues forward to limit and exclude those v+eay contractors from participating in the
refinery construction and Axa kae nce process. Arguably,this sham amendment will increase the
chances of serious incidents at tete refineries. The proponents of the proposed amendments should
be ashamed of themselves for classifying it as u safetynrdirutnce when safety is clearly not the
goal. The proposed legislation is nothing more than a building trades union preference proposal.
Why not at least be straight forward and truthful about the real intended purpose?
These issues have already been addressed in the record at length, but one exarnple should suffice.
For they first three years, 50% of the workers at refimeries Must have either graduated from a CAC--
approved apprenticeship program,or the contractors employing the workers must have signed with
a "bona tide" apprenticeship program, The record Is clear that for the trades in which most
refinery work occurs, the CAC has only approved union-sponsored apprenticeship programs.
Further, it is clear from the record that reaching Chis arbitrary and coacocted "bona fide" scants
will take between 12 to 13 years, pJ a mi3" muM. Therefore, the asrtcndment merely guarantees
that for the first three years, half the workers must come from union programs. The amendmaut
also guarantees that for at least the next 12 to 13 years, the only apprentice programs that will be
"qualified" to administer equivalency tests and the required, 20 hours of annual training will be
union-sponsored programs, What a coincidence,
Tbo Board claims it is preparing a "level playing field" for workers and,contractors wishing to
work at the refineries, but Me Ordinance exempts workers who have graduated from union
sponsored CAC-apprenticeship programs from taking equivalency tests and fails to set a'uni.f*=
testins standard across the board. The last time f checked, graduates of the University of
Califarnia law schools mast take final exarm to graduate,but they are not exompt from taking the
California Bar Exam to practice law in Calffornic If there is going to be a test, the test must be
uunifr►rm to insure a level playing field and to stake sure aU workers are safe and qualified.
11.'UT/XUU2 16:28 FAX 028 6150143 ANDERSEN.DONNIFIELD ETAL s X1004
Mr. Rudy SaWyet
November 7,2002
Page 3
Please communicate to Chairperson John Ginia, other members of the Board and the County
lawyers, i=luding Tom Adams, that on behalf of the members of the California Contractors
Alliance, our request is as follows:
"'fide nwpectftelly request that the Contra Costa County Board of Supervisors enact an
ordinance which truly promoter saw, uniform testing of all workers and dots not in any
way discriminate against contractors or workers as to race, color, creed., gender or union
atl;tltation."
Is it just a coincidence that the stearafitters, bollernakers and pipefitters union proposed the
Ordinance and their prograrms are the only programs in Northern California that meet many of the
key requirements? In order to protect the building trades, a special interest ,group, that the
majority of the Board is severely impacting the lives and livelihoods of thousands of goad, sift,
hardworking workers and their families. These people are also citizen who should be represented
by their elected off#cials but obviously are not being heard for a clearly political reason, i.e..
protect the building trades unions and provide them with a preference in working in the refineries.
I thank you for your time and consideration. I realize that you are m an uncomfortable position
as a County stdf member in that many times you are directed by the Board and that your true
evaluation emit be heard. Should you have any questions,please do not hesitate to contact me.
Very truly years,
o:ERSEN
C
Boaors
County Counsel
.TO: BOARD OF SUPERVISORSContra
FROM: William Walker, M.D.
Health Services Director � �+ Cost'.
DATE: November 5, 2002 County
SUBJECT: Proposed Amendments to the industrial Safety Ordinance
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
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.
BACKGROUND:
At the December 4, 2001 meeting, the Board of Supervisors asked the Hazardous Materials
Commission and the Public and Environmental Health Advisory Board 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.
CONTINUED ON ATTACHMENT: X YES SIGNATURE: '-�0
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):(
ACTION OF B OND 3,2002 APPROVE AS RECOMMENDED OTHER
kC t BIN= AND VOM.
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS (ABSENT ) AND ENTERED ON THE MINUTES OF THE
BOARD OF
SUPERVISORS ON THE DATE
AYES: NOES: SHOWN.
ABSENT: ABSTAIN:
ATTESTEDDEGMM 3, 2002
CONTACT:Michel Kent(925)513-6587
JOHN
SWEETEN,CLERK OF THE BOARD
OF SUPERVISORS AND COUNTY
ADMINISTRATOR
CC:
BY
DEPUTY
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. The attachment 1 describes the status of each
recommendation and the specific action requested of the Board of Supervisors in response to each of
those recommendations.
2
vxA ��................ _ .......
DECEMBER. 3, 2002
On this date, the Board considered adopting recommendations of the Hazardous Materials
Commission("Commission") and the Public and Environmental Health Advisory Board
("PEHAB") concerning proposed amendments to the Industrial Safety Ordinance("ISO"),
and changes to the implementation guidelines.
The Board also considered adopting an ordinance to amend the Industrial Safety Ordinance
with regard to contractor worker skills training and skills testing, drug and alcohol testing,
and contractor safety record("Contractor Safety Amendment").
Silvan Marchesi, County Counsel,reported on legal issues pertaining to the California
Environmental Quality Act and recommended that an environmental impact report(`BIR")
be prepared if the Board was considering adopting the Contractor Safety Amendment.
The following persons presented testimony:
Greg Feere, Contra Costa Building Trades Council, 935 Alhambra Avenue, Martinez;
Tom Adams, Contra Costa Building Trades Council, 176 Valdeflores Drive, Burlingame,
The Board discussed various issues relating to the Contractor Safety Amendment, including
consideration of economic impacts of out-of-state workers being employed at refineries
located in Contra Costa County.
Chairman Gioia MOVED and Supervisor Uilkema SECONDED the following motion:
The Community Development Department is directed to prepare an EIR on
the Contractor Safety Amendment in a timely manner;
Staff is directed to study and report on the impact of out-of-state workers on
fiscal issues in Contra Costa County or the environment(which could,be an update
of previous studies conducted on the subject), said studies to be conducted to the
extent feasible in conjunction with the EIR, otherwise parallel to the preparation of
the EIR; and, provide a history of refinery assessments;
The County Administrator is directed to explore funding alternatives within
and outside of County government for preparing the EIR; and report back to the
Board in 60 days.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
1
r
The motion PASSED. cf
The Board discussed the Inherently Safer Systems Amendment to the Industrial Safety
Ordinance.
Supervisor Gerber MOVED, and Supervisor DeSaulnier SECONDED the following motion:
Staff shall place the Inherently Safer Systems.Amendment on the Board's
agenda for consideration at the same time the Board considers the Contractor Safety
Amendment.
The vote on the motion was as follows:
AYES: III, IV, I
NOES: II, V
ABSENT: None
ABSTAIN: None
The motion PASSED.
The Board considered the recommendations of the Commission and PEHAB pertaining to
the Industrial Safety Ordinance. The staff report was given by Michael Kent.
FOLLOWING DISCC.TSSION BY THE BOARD:
1. Supervisor Uilkema MOVED and Supervisor Glover SECONDED the following motion:
County Counsel is directed to assist PEHAB in preparing an amendment to
the ISO pertaining to incident investigations (Section 450-8.016 (A)(9)), to ensure
that facilities investigate the largest number of incidents that may lead to an impact on
the surrounding community and environment, after PEHAB completes its
consideration of what amendment will be recommended.
The vote on the motion was as follows:
AYES. II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
2. Supervisor Uilkema MOVED and Supervisor DeSaulnier SECONDED the following
motion:
The Board endorses the Commission's recommendation that the guidelines to
facilities include direction to the facilities to make reasonable and timely progress
2
towards concluding root cause analyses and provide an update to the County every 30
clays.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
3. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
The Health Services Department,Hazardous Materials Program Division,
shall develop definitions of the terms"Incident Investigation,""Safety Inspection,"
and"Incident Safety Inspection,"and report these definitions to the Board before
inclusion in the ISO guidance document.
The vote on the motion was as follows:
AYES: II, in, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
4. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
The Health Services Department,Hazardous Materials Program Division, is
directed to develop language recommending completion of future audits within one
year, and a table on recommended timelines for implementing the ISO. The language
and table shall be reported to the Board before inclusion in the ISO guidance
document.
The vote on the motion was as follows:
AYES: II, III, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
5. Supervisor DeSaulnier MOVED and Supervisor Glover SECONDED the
following motion:
3
-D,49L-
The Health Services Department,Hazardous Materials Program Division, is
directed to develop a plan and schedule to complete the public information bank
required by the ISO and, by June 1, 2003,have electronic access available.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
6. Supervisor Glover MOVED and Supervisor Uilkema SECONDED the following motion:
The Board endorses changes in the Health Service Department, Hazardous
Materials Program's Public Participation Policy, to reflect the need for enhanced
public outreach, to make it more proactive, and to add staff as necessary to
accomplish this policy.
The vote on the motion was as follows:
AYES: II, III, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
7. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
County Counsel is directed to prepare an ordinance amending the ISO as
follows:
A. Amend section 418-8.018(A.)by adding the following four
sentences immediately before the last sentence:
"Public comments on the Safety Plan shall be taken by the
Department for a 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 to all oral comments received and not
addressed at the public meeting."
B. Amend section 418-8.018(B)(4)by adding at the end:
4
"The Department shall respond in writing to all written
comments received during the 45 day comment period and to all oral
comments received and not addressed at the public meeting."
C. Make those housekeeping amendments to be recommended
by the Commission.
The vote on the motion was as follows:
AYES: II, III, IV,V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
5
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.
Section D ,
Date: September 12,2002
SECTION D: PROCESS HAZARD ANALYSIS/ACTION ITEMS f
County Ordinance Cade 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 CaIARP Program Guidance Document except in assessing
whether seismic events must be considered.
Seismic events must be considered (i,e., a snismic 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 CalARP program regulations) and the
distance to the nearest public receptor for a worst case release scenarios is within the distance to the
toxic or flammable endpoint. The seismic assessment should be conducted in accordance with
Section 7.3.4 and Appendix B of the Contra Costa County CalARP Program Guidance Document.
Additionally,County Ordinance Code Chapter 450-8,Section 450-8.016(D)requires the following
for conducting PHA's.
DA 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
1996 Centerfor 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 ofprocesses which operate at lower
temperatures andlor pressures." County Ordinance Code Chapter 450-8, §450-8.014(8)
"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:
'As specified in Califomia Code of Regulations,Title 19,Chapter 4.5;Section 2750.3
2 As specified in California Code of regulations,Title 19,Chapter 4.5,Section 2750.2(a)
3 Process Plants: A Handbook for Safer Design, 1998,Trevor Metz
D-1
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 the first two categories, inherent and passive, are more reliable
because they depend on the physical and chemical properties of the system rather than the
successful operation of instruments, devices,procedures, and people." The inherent and
passive categories should be implemented when feasible for new processes and facilities and
used during the review of Inherently Safer Systems for existing processes if these processes
could cause incidents that that could result in a Major Chemical Accident or Release. The
final two categories do require the successful operation of instruments,devices,procedures,
and people. The concepts that are discussed in the CCPS book,Inherently Safer Chemical
Processes,A Life Cycle Approach,for looking at active and procedural applications of risk
reduction, should be used in developing recommendations and mitigations from process
hazard analyses along with the inherent and passive categories. This is good risk reduction.
These concepts should also be used in the review and application of human factors for
process hazard analysis of new and existing processes.
Approaches to consider Inherently Safer Systems include the following:
• 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
4 CCPS,Inherently Safer Chemical Processes A Life Cycle Approach, 1996
i
D-2
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 flan 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 theguidance 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 learn where 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 Safety Ins ecp tion 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 be 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, 29CFR1910.119(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, 4513-8.016(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 day&
2. The Consistency and Clarity of the Terms Incident Investigation,Safety
Inspection, and Incident Safety Inspection
The term Incident Investigation is used in section 450-016(CX2), "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 defmition 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 of, or in conjunction with, the P11A
process, while not limiting the analyses to FHA mitigation items. This addition to
the guidelines should reflect a definition of IS&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.
H. Recommendation Concerning Contractor Training Requirements
At their September 17 and"October 8, 2042 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.
M. 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 HMC 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 MMC 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 currently used 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 eatastEephie 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
_. ._...
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.
"The Department shall respond in writing to all written
comments received during the 45 day comment period and to all oral
comments received and not addressed at the public meeting."
C. Make those housekeeping amendments to be recommended
by the Commission.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
5
The Health Services Department, Hazardous Materials Program Division, is l ��
directed to develop a plan and schedule to complete the public information bank
required by the ISO and, by June 1, 2003,have electronic access available.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
6. Supervisor Glover MOVED and Supervisor Uilkema SECONDED the following motion:
The Board endorses changes in the Health Service Department, Hazardous
Materials Program's Public Participation Policy,to reflect the need for enhanced
public outreach, to make it more proactive, and to add staff as necessary to
accomplish this policy.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
7. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
County Counsel is directed to prepare an ordinance amending the ISO as
follows:
A. Amend section 418-8.018(A)by adding the following four
sentences immediately before the last sentence:
"Public comments on the Safety Plan shall be taken by the
Department for a 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 to all oral comments received and not
addressed at the public meeting."
B. Amend section 418-8.018(B)(4)by adding at the end:
4
..........................................................................................................................................................................................................................................................................................................................
towards concluding root cause analyses and provide an update to the County every 30
days.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
3. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
The Health Services Department,Hazardous Materials Program Division,
shall develop definitions of the terms"Incident Investigation,""Safety Inspection,"
and"Incident Safety Inspection,"and report these definitions to the Board before
inclusion in the ISO guidance document.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
4. Supervisor Uilkema MOVED and Supervisor Gerber SECONDED the following motion:
The Health Services Department, Hazardous Materials Program Division, is
directed to develop language recommending completion of future audits within one
year, and a table on recommended timelines for implementing the ISO. The language
and table shall be reported to the Board before inclusion in the ISO guidance
document.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
S. Supervisor DeSaulnier MOVED and Supervisor Glover SECONDED the
following motion:
3
The motion PASSED.
The Board discussed the Inherently Safer Systems Amendment to the Industrial Safety
Ordinance.
Supervisor Gerber MOVED, and Supervisor DeSaulnier SECONDED the following motion:
Staff shall place the Inherently Safer Systems Amendment on the Board's
agenda for consideration at the same time the Board considers the Contractor Safety
Amendment.
The vote on the motion was as follows:
AYES: III, IV, I
NOES: II, V
ABSENT: None
ABSTAIN: None
The motion PASSED.
The Board considered the recommendations of the Commission and PEHAB pertaining to
the Industrial Safety Ordinance. The staff report was given by Michael Kent.
FOLLOWING DISCUSSION BY THE BOARD:
1. Supervisor Uilkema MOVED and Supervisor Glover SECONDED the following motion:
County Counsel is directed to assist PEHAB in preparing an amendment to
the ISO pertaining to incident investigations (Section 4508.016 (A) (9)), to ensure
that facilities investigate the largest number of incidents that may lead to an impact on
the surrounding community and environment, after PEHAB completes its
consideration of what amendment will be recommended.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
The motion PASSED.
2. Supervisor Uilkema MOVED and Supervisor DeSaulnier SECONDED the following
motion:
The Board endorses the Commission's recommendation that the guidelines to
facilities include direction to the facilities to make reasonable and timely progress
2
DECEMBER 3, 2002
On this date, the Board considered adopting recommendations of the Hazardous Materials
Commission("Commission") and the Public and Environmental Health Advisory Board
("PEHAB")concerning proposed amendments to the Industrial Safety Ordinance("ISO"),
and changes to the implementation guidelines.
The Board also considered adopting an ordinance to amend the Industrial Safety Ordinance
with regard to contractor worker skills training and skills testing, drug and alcohol testing,
and contractor safety record("Contractor Safety Amendment").
Silvano Marchesi, County Counsel,reported on legal issues pertaining to the California
Environmental Quality Act and recommended that an environmental impact report("EIR")
be prepared if the Board was considering adopting the Contractor Safety Amendment.
The following persons presented testimony:
Greg Feere, Contra Costa Building Trades Council, 935 Alhambra Avenue, Martinez;
Tom Adams, Contra Costa Building Trades Council, 176 Valdeflores Drive, Burlingame;
The Board discussed various issues relating to the Contractor Safety Amendment, including
consideration of economic impacts of out-of-state workers being employed at refineries
located in Contra Costa County.
Chairman Gioia MOVED and Supervisor Uilkema SECONDED the following motion:
The Community Development Department is directed to prepare an EIR on
the Contractor Safety Amendment in a timely manner;
Staff is directed to study and report on the impact of out-of-state workers on
fiscal issues in Contra Costa County or the environment(which could, be an update
of previous studies conducted on the subject), said studies to be conducted to the
extent feasible in conjunction with the EIR,otherwise parallel to the preparation of
the EIR; and,provide a history of refinery assessments;
The County Administrator is directed to explore funding alternatives within
and outside of County government for preparing the EIR.; and report back to the
Board in 60 days.
The vote on the motion was as follows:
AYES: II, III, IV, V, I
NOES: None
ABSENT: None
ABSTAIN: None
1
• 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 of, or in conjunction with, the PIM
process, while not limiting the analyses to PHA mitigation items. This addition to
the guidelines should reflect a definition 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.
U. Recommendation Concerning Contractor Training Requirements
At their September 17 and,October 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.
M. 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 HMC 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 currently used 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 a ealastfophie release a Magor 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
(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,fie, 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
49-
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, 29CFR1910.119(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 hoot 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 guidelinesfor
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 450-016(C)(2), "The Department may
elect to do its own independent Root Cause analysis or incident investigation for a Major
Chemical Accident or Release.
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The term Safety Inspection 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 (C), "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 be 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 ordnance 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
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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 learn where 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
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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 their progress
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
b. 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(13)(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.
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The Hazardous Materials Commission recommends changing Section 450-
018(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(B)(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 Part 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. Rather 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.
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