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HomeMy WebLinkAboutMINUTES - 10082002 - D.2 TO: BOARD OF SUPERVISORS Contra FROM: Dennis M. Barry, AICP, Community Development Director Costa William Walker, M. I., Health Services Director . .� [SATE: October 8, 2002 county SUBJECT Status Report on Proposed Amendments to the Industrial Safety Ordinance SPE lIC 1 QUEST( )OR ECBOM:ENDATION(S) & BACRgroUND AND JUSTI ICATION RECOMMENDATIONS: 1 ACCEPT the status report of the Community Development Director and the Health Services Director regarding the proposed amendments to the Industrial Safety Ordinance (ISO). 2. REQUEST'staff to return on November 5 2002 for introduction of the proposed amendments in Ordinance form following compliance`with the California Environmental Quality Act(CEQA). 3. DIRECT staff to include the previously proposed amendments regarding Inherently Safer Systems on the same Board agenda. CONTINUED ON ATTACHMENT: 2 YES M NO: SIGNATURE SGNAT URF ,. RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER > SIGNATURES ACTION OF BOARD ON 4&2L. PPROVED AS RECOMMENDED.. OTHER 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 ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN Contact: Dennis M. Barry, AICP (9251335-1276) ATTESTED _,Ut; 2LL,, - cc: Community Development Department(CDD) JOHN SWEETEN$ CLER,KOF THE Randy Sawyer, Health Services'Department' BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR OMB:gms < d\dmb5MSO 10.8.02 130 BY �_ , DEPUTY Status;Report on Proposed Amendments to the ISO October 8, 2002 Page 2; FISCAL IMPACT: No fiscal impact is expected at this time. If additional staff need be fired to enforce the new requirements of the ordinance, this will be offset by an increase of fees to the stationary sources covered by the Industrial Safety Ordinance. BACKGROUNDIREAS'ONS'FOR'RECOMMENDATIONS: On September 17,2002,the Board of Supervisors directed staff to draft a proposed amendment to County Ordinance Code Chapter450-8(industrial Safety Ordinance). The proposed amendments include thefollowing: 1. Employ only journey-level workers who have either: A. Graduated from an apprenticeship program approved by the California Apprenticeship Council (CAC), or B. Obtained a certificate of equivalent training by completing a test (both written exam and a manual skill demonstration)that shows that the skills of the worker are at least the equivalent to an apprenticeship program graduate. Test requirements include: (1) administered by -.a CAC-approved apprenticeship program;or(2)approved by the CAC and administered in an accredited four-,year college ora two-year community college(with adequate facilities for bath the written and manual exams). 2. Employ only apprentices enrolled in a CAC-approved apprenticeship program. 3. Continuing training requirements for journey-level workers: Employ only journey-level workers who have completed at least 20 hours of training skills, construction techniques and safety for that occupation within the last 12 months at a CAC approved apprenticeship program (the stakeholders are invited to suggesta method to providing a certificate of equivalent training to meet this requirement, similar to a test-out provision for graduating from the apprenticeship program). 4. Provide an emergency exemption whereby contractors may be hired in case of an emergency without the two-day search period specified in the draft ordinance submitted by the building trades. 5. Employ only refinery contract workers who have completed the Bay Area Training Corporation (BATC) safety orientation program, which includes an eight (8) hour safety training course resulting in a certification, which is valid for two (2) years. Status Report on Proposed Amendments to the ISO October 8,2002 Page 3 6. Lead workers on a refinery job or those who work independently within the refinery must have passed a refinery safety skills test program administered by BATC. 7. All workers must participate in a drug and alcohol testing program that includes pre- employment testing, annual random testing or at least 50% of the workforce and "for cause" testing. Workers must be enrolled in the program prior to starting work at the refinery. 8. Refineries shall be required to consider the contractors safety record and shall give priority to hiring those contractors with the best records(staff is also requested to investigateand make suggestions regarding a potential for underreporting of accidents which was suggested in testimony). In addition,staff is requested to investigate the transferability of federally approved apprenticeship programs to work within California comparing federal standards with California standards. Staff of the Hazardous Material Program advise that these standards are comparable and compatible. Attachment 1 includes the proposed language to amend County Ordinance Section 450-8.014 and 450-8.016 known as the Industrial Safety Ordinance as directed by the Board. Attachment 2 is a report on underreporting of work-related injuries and illnesses to OSHA and California's Workers' Compensation. It should be noted that Attachment 2 concludes with'a recommendation that the ordinance proposal be modified to require that oil refineries assign the lowest priority for one year to contractors demonstrated to have underreported work-related injuries and illnesses. Auachment 1 ORDINANCE NO 2002- (CONTRACTOR`OR WORKERSKULLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAI 41NG AND SKULLS TESTING,DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD); SECTION V Section 450-8.014 of the County Ordinance Code is amended,by adding subdivisions (p)through(u), ding specified terms,to read; (p)"Bay Area Training Corporation Safety Orientation Program"means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q) "Contractor Covered Worker"means an employee of an oil refinery contractor engaged in new construction,maintenance,repair, or turnaround work at an oil refinery involving energized, pressurized,or control systems in the skill areas of electrical,metals, rotating equipment,and instrumentation. (r) "Drug and Alcohol Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile'contractor work force or an equivalent substance abuse testing program that includes pre-employment testing,'annual random testing of at least 50% of the workforce and for cause testing. (s) "Oil Refinery"means a facility with a primary North American Industry Classification System'Code("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) "OR Refinery Safety Skills Fest Program"means the oil refinery safety skills test program administered by the Bay Area.Training Corporation on the effective date of this Chapter,as it may be subsequently modified or amended by the Bay Area'Training Corporation. (Ords. 2002-i § 1;98-48 § 2.) SECTION II. Section 450-8.016'ofthe County Ordinance Code,on Stationary Source Safety Requirements,is amended as follows: A. By deleting subsection(11), Contractors, of subdivision(a),Rask Management Program.Elements. B By adding subdivision(g), Contractor Safety, to read: (g)Contractor Safety.{1)Application. This section applies to contractors performing new construction,maintenance or repair,'turnaround,major renovation, or specialty work on.or ORDINANCE NO. 2002-- October 1,2002 adjacent to a covered process. It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services,laundry, or other supply services. (2) Stationary source responsibilities. (A)The stationary source,when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B)The stationary source shall inform the contractor of the known potential fire, explosion, or to release hazards'related to the contractor's work and the prods. (C)The stationary source shalll explain to the contractor the applicable previsions of the emergency response program in subsection(12)of subdivision(a)of this section (D)The stationary source shall develop and implement safe work practices consistent with subsection(2)of subdivision(a)of this section,to control the entrance,presence, and exit of the contractor and contractor employees in covered process areas. (E)The'stationary source shall hire only contractors who comply with the provisions of subsection(3)(Contractor Responsibilities)of this subdivision. (F)The stationary source shall.periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision, (3)Contractor responsibilities. (A)Every contractor performing work to which this=subdivision applies pursuant to subsection(1) of this subdivision shall,during the first three years after the effective date of this subdivision either(i)have executed an apprenticeship agreement with a bona fide apprenticeship program for each apprenticeable occupation employed by the contractor at the stationary:,source; or(ii)employ a workforce in which 50%of the workers in each apprenticeable occupation employed by that contractor at the stationary source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council. (B) Commencing three years after the effective date of this subdivision,each contractor' performing work to which this subdivision applies pursuant to subsection(l)of this subdivision shall employ(i} only journey level workers in an apprenticeable occupation who have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(D)below, of this subdivision, {ii)employ only apprentices in an apprenticeable occupation who are enrolled in an apprenticeship program for that occupation that has been approved by the California Apprenticeship ORDINANCE NO. 2002 -2- October 1,2002 Council,and(iii) employ only journey level workers in an apprenticeable occupation who have completed at least 20 hours of training in skills, construction techniques,and safety for that occupation within the last''12 months at a bona fide apprenticeship program for that occupation. (C)Each contractor is required to meet its need for workers by hiring trained workers in each apprenticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa,Alameda,and Solano Counties. If a contractor attempts to obtain trained workers from labor hiring facilities in Contra Costa, Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it.may hire other workers only to the extent that trained workers are unavailable. In the event of workforce reductions,a contractor shall lay-off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection(F)below, and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (D)A journey level worker may obtain a certificate of equivalent training for an apprenticeable occupation by completing;a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a`worker who has graduated from a bona 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. (E) The terms"apprentice" and"apprenticeable occupation"shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation."refers to an apprenticeable occupation. The term"journey level worker"shall have the same meaning as the term"journeyman"in the California Labor Code. A bona fide apprenticeship program is one that has been approved by the California Apprenticeship Council'and that hasgraduated apprentices in each of the most recent five years,;.except,until November 2005, in the case of an apprenticeship program for an occupation that was determined to be an apprenticeable'occupation by the California Division of Apprenticeship Standards within the last nine years, one that has graduated apprentices in each of the most recent three years. The term"trained worker"means (i) during the three years after adoption of this ordinance: a journey level'worker who is a graduate of an: apprenticeship program for that worker's Occupation approved by the California Apprenticeship;Council;or(ii)more than three years after adoption of this ordinance:a journey level worker in an apprenticeable occupation who has graduated from an apprenticeship program for that worker's occupation approved by the California Apprenticeship Councilor who has obtained a certificate of equivalent training as provided in subsection:(D)above and, in either case, who ORDINANCE NO. 2002- -3- October 1,2002 has completed at Least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months at a bona fide apprenticeship program for that occupation or an apprentice enrolled in an apprenticeship program for that apprentice's occupation that has been approved by the California Apprenticeship Council. (F) (i) The contractorshall assure that each contract employee is trained in the work practices necessary to safely`perform his/her job. (ii)The contractor shallassure'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 shalt 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 ofthe stationary source including the safe work practices required by subsection(2)of subdivision(a)of this section. (v)The contractor shall advise the stationary source of any unique hazards'presented by the contractor's work or of any hazards found by the contractor's work. (G)Contractors performing work immediately necessary to respond to an emergency shall be exempt'from the provisions of subsections (3)(A)through(E) of this subdivision. For purposes of this subsection an emergency means a sudden,unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life,health, property, or essential public services.' (4) OR Refinery FttesponsibiIities, (A) Safety and Skill Training and Testing. ()An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation'Safety Orientation Program. (ii)Oil refinery contractors shall' require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refinery job to have passed the Oil Refinery Safety Skills Test Program. (B)Drug and Alcohol Program. Oil refinery contractors shall require their contractor covered workers to participate in a Drug and Alcohol Testing Program that includes pre employment testing, annual random testing of at least 5011 ofthe 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 ORDINANCE NO. 2002- -4- October 1,2002 ....,„„„ „„„„.„„„ , :::: consider the contractor safety record of the oil refinery contractor,including three most recent years for each of the contractor's'OSHA defined Total Injury and:Illness Incident Rate and Worker's Compensation Experience Modification'Rate records for the Oil Refinery Contractor. (Ords. 2002-_§ 2, 2400-20 § 1, 98-48>§ 2..) SECTION IB. 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 W. PREEMPTION:' Nothing in this ordinance is intended,;and nor shad it be deemed,to excuse or prevent compliance with any state or federal law. If any provision of this ordinance, or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any;;applicable state or federal law,the Board of Supervisors declares its intent (1)that such provision be severable from the remainder of the ordinance, and(2)that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times,a:newspaper published in this County. PASSER on _____by the following vote: AYES NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair,Board of Supervisors [SEAL] MMAZMAT�MORM100102 dra8.wpd ORDINANCE NO. 2002- -5- October 002_5_October 1,2002 Attachment 2 Reporting of Safety Statistics to OSHA and Workers' Compensation Systems Introduction The Board of Supervisors at their September 17, 2002 meeting asked staff to look at the potential underreporting of work-related injuries and illnesses to OSHA and to Workers' Compensation Systems. The Board indicated that they would like to have some basis for the oil refineries to compare the different contractor's safety record, so that the contractor with the best safety record could be hired to supply workers to the oil refineries as needed. The two most used metrics that are used to judge the overall safety in industry include the OSHA records on the number of injuries and illnesses that are reported and can be attributed to the requirements of the worker's job and the Worker's Compensation Systems Experience Modification Rate (EMR). OSHA Recordables Employers are required to report to OSHA: when there is an injury and illness that is job related. 29 CFR; Part 1910, Section 1904.12(c) defines "Recordable occupational injuries or illnesses are any occupational injuries or illnesses which result in: (1) Fatalities, regardless of the time between the injury and death, or the length of the illness; or (2) Lost workday cases, other;than fatalities, that result in lost workdays;;or (3) Nonfatal cases without lost workdays which result in transfer to another job or termination of employment, or require medical treatment (other than first aid) or involve: loss of consciousness or restriction of works or motion. This category also includes any diagnosed occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday' cases. , OSHA has requirements for reporting'and recording the different injuries and illnesses, a requirement that OSHA has access to records, and penalties for any knowingly false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained. The person making the false report is subject to a'fine of not more than $10,000, or by imprisonment, for not more than 6 months, or both. Experience Modification Rate The EMR is dependent on the number of"claims made for workers' compensation in California. Staff Report on Underreporting of Work-Related Injuries and Illnesses October 8,2402 Underreporting Lenore S."Azaroff, ScD., Charles Levenstein, PhD, MOH, and David H. Wegman, MD, MPH authored a September 2002, Vol. '92, leo. 9 article in the American Journal of Public Health. The author's reference 13 different reports that show that the Bureau of Labor Statistics underestimate the incidence of work related injuries, illness, and even fatalities by as much as several hundred percent. The article lists several filters or barriers to reporting of injuries and illnesses that include: • Reporting to Supervisors • Last Work Time Medical Care for Work-Related Injuries and Illnesses • Recognition of Work-Related Injuries and Illnesses Charging Medical Care to Workers' Compensation * Recording incidents in OSHA logs; • Reporting of Injuries to Workers' Compensation Agencies The description of these barriers is below. The article also discusses some of the differences in union and nonunion reporting of illnesses and injuries. Reporting to Supervisors "Workers who report health problems to supervisors may risk disciplinary action, denial of overtime or promotion opportunities, stigmatization, drug testing, harassment or job loss. tethers may fear such outcomes even in the absence of demonstrable risk. Some safety incentive systems reward workers who do not report injuries with money, material goods, or recognition." The article also statesthat most construction workers may risk opportunities for future job assignments by reporting health problems. Lost Work Time "Workers who do inform their supervisors of an injury of illness may not be able to afford lost work time. Workers' compensation partial wage replacement becomes available only after a minimum number of lost workdays." Compensation may only pay for a portion of lost wages, often does not cover the first several lost days, and takes several weeks to-get paid and could be denied altogether. Medical Care for Work.Related Injuries and`.Illnesses Employers have different ability to give "first aid'", which is not included in the recordable statistics. "Some companies provide care for work-related musculoskeletal disorders and other injuries in-house, providing splints, ice, exercise, anti-inflammatory medication, and other treatments and define these as first aid'. " "Workers who do not expect their condition to be covered by workers'compensation may forgo medical care owing to lack of access to or familiarity with alternative methods of payment." Page 2 of 4 Staff Report on Underreporting of Work-Related Injuries and Illnesses October 8,2002 Recognition of work-related Injuries and Illnesses "Workers who obtain medical',care may not perceive a connection between their health problems and their jobs,;;a problem reinforced by lack of hazard communication at the worksite. . . Lack of recognition is especially likely for diseases with long latency periods, symptoms common to nonoccupational disorders, or multiple causal factors. These include nonpneum'oconiotic chronic respiratory illness, cancer, heart disease, renal disease, and neurological disorders. Charging Medical Care to Workers' Compensation "Filing compensation claimscan raise employers'premiums; while charging ordinary health insurance coverage usually does not. Employers typically pay all compensation insurance costs with no co payments by ;employees. In the construction industry, contractors'records of compensation claims also affect their competiveness in contract bids. (Emphasis added) As a result, some'employers warn their employees not to tell their doctors that they were hurt at work Some maintain medical professionals on staff, or train nonclinician staff to treat injured employees, and cover the costs." Recording incidents in OSHA logs "In 1987 the National Academy of Sciences found that several of the largest corporations in the United States engaged in serious and willful underreporting of work-related injuries. Reasons included the desire to avoid OSHA inspections as well as competition among companies'and among plants within a company to record low injury rates and enhance supervisors'performance evaluations." The article also states that employers may record occupational injuries and illnesses in ways to protect the business from liabilities. Reporting of Injuries to Workers' Compensation Agencies "As with medical compensation, employers may avoid filing wage-replacement claims to control their insurance rates. Workers are permitted to file for wage replacement themselves, but they may not know this. Other workers may choose not to file because compensation pays .only a portion of lost wages and does not cover other expenses related to the injury: Reporting differences Between Union and Nonunion Companies The article states that there could be differences between the reporting rates of union and nonunion companies. The barrier of reporting to their supervisor may not be as large a barrier for union employees as for nonunion employees. "Members of active unions may have support for safely reporting health problems." The union companies may have better benefits that reduce the concerns of losing wages because of work-related injuries or illnesses. "Lack of sick leave benefits, especially common in nonunion employment, may prevent these workers from missing work." The article also suggests that union workers also tend to know their rights for workers' compensation better than nonunion workers and have support of their local union. Page 3 of 4 .......... ................- ............ ............................ ............................... Staff Report on Underreporting of Work-Related Injwies and Illnesses October 8,2002 Conclusions Underreporting of injuries and illnesses to OSHA and for California Workers' Compensation does exist. There may also be greater underreporting from nonunion employers than from union employers. One of the barriers for companies to report work-related injuries and illnesses is tying their OSHA recordable rates to selection of a contractor. This is considered'a deterrent to reporting. Recommendations The OSHA recordable statistics and the EMR are the most universal metrics that can be used to determine<the safety records of companies. OSHA has penalties for knowingly underreporting of work-related injuries and illnesses. Staff is recommending that the ordinance require that the,oil refineries consider the OSHA recordable and EMR statistics in their selection of contractors. Staff is also recommending a requirement that if there is a company that is demonstrated by OSHA to have underreported that company should be moved to the lowest priority for the hiring of contractors by an oil refinery for a twelve- month period. Page 4 of 4 (c) ensure that there will be a test in place for each craft; (d) definedterms to be capitalized in the Ordinance; and , (e) staff recommended modification for addressing the issue of under reporting of accidents by contractors; • ESTABLISHED an Ad Hoc Committee, consisting of Supervisors Gioia and Glover, to work on a protocol for training`.and/or testing for refinery employees; • REQUESTED'staff to return on November 5, 2002 at 1.00 p.m. for introduction of the proposed amendments in Ordinance form following compliance with the California Environmental Quality Act-<(CEQA), • DIRECTED staff to include the previously proposed amendments by Supervisor Gerber and drafted by County Counsel regarding Inherently Safer Systems on the same Board agenda; The vote on the motion was as follows: AYES: SUPERVISORS GERBER,DeSAULNIER,'GLOVER and GIOIA NOES: SUPERVISOR UILKEMA ABSENT: NONE ABSTAIN: NONE ADDENDUM TO ITEM D'.2 October 8, 2002 On this day,the Board of Supervisors considered accepting the status report from the Community Development Director and Health Services Director on proposed amendments to the Industrial SafetyOrdinance, and actions to be taken. Dennis Barry, Community Development Director presented the staff report and recommendations. The Board discussed the matter, the public hearing was opened, and the following people presented testimony: Brent Babou,California Contractors Alliance, 575 W. College Avenue,No.101, Santa Rosa; Anne Quick, Associated Builders'and Contractors; Robert Fried, California Contractors Alliance, 5776 Stonebridge,:Pleasanton; Pat Leiser, California Contractors Alliance, 1408 Harris Court, Antioch; .Allen Cyr, California Contractors Alliance, 175 Industrial Way,Benicia; Tony Spencer, California Contractors Alliance, 155 Corporate Place, Vallejo; Chris Rippee,California Contractors Alliance, 1260 Railroad Avenue,Vallejo; Jim Payne,PACE,P.O.Box 349,Martinez; Carmeo Santiago, California Contractors Alliance, 101 East Channel Road, Benicia; Norm Hattich California Contractors Alliance,4650 East 2"�Street, Benicia, The following person did not wish to testify,but offered written comments: Bili Carter,Plant Maintenance, Inc., 3773 Pacheco Boulevard, Martinez; All those desiring to speak having been heard,the Board discussed the matter. The Chair closed the:public'hearing. Supervisor Gioia then'advised that the Board had received a.'letter elated October 8, 2002, from the Department of Industrial Relations,Division of Apprenticeship Standards in response to an inquiry'concerning whether or not the California Apprenticeship' Council might have the authority and capability to certify industry wide competencies in certain apprenticeable occupations. The Board took'the following action: • DIRECTED the Community Development Director and the Health Services Director to incorporate language addressing the following concepts in the Ordinance: (a) alternate 20 hour per year training to occur at a four or two year public college,: (b) acknowledge some testing mechanism which occurs as part,�fgraduatingfrom a bvnafide apprenticeship program; WSIJL �L A. western State's Petroleum Association Dennis Bolt Bay Area Coordinator (915)498-7756 (916)444-.8997(FAX) dennis@wspa.org The Honorable John Gioia October 4, 2002 Chair,Board of Supervisors Contra Costa County 651 Pine Street. Martinez, California 94553 RE: Building Trade's Proposal for Amendments to the Industrial Safety Ordinance Dear Supervisor Gioia and Members of the Board: The Western States Petroleum Association(WSPA) is a trade association that represents the majority of petroleum related interests involved in the production, transportation, refining and marketing of petroleum products in the western United States. Thank you for the opportunity to comment on the proposed draft amendments: WSPA believes that County staff has underestimated the potential impacts of the proposed ordinance, and has failed to adequately represent the public record in its verbal report on the California Environmental Quality Act(CEQA) analysis made at the Board's September 17''meeting. The proposed amendment is likely to result in the replacement of experienced employees with less experienced, or even inexperienced employees. WSPA believes that it is in the refiners' and the public's best interest to hire the most experienced employees available due to the sophisticated and technically complex nature of refinery operations. The potential impacts of a requirement that could replace more experience employees is a criticalissuethat requires a complete and thorough review of potential impacts. The proposed amendments clearly establish a hiring preference that' immediately upon adoption, would likely require hiring workers with little or no refinery experience in place of workers that are experienced in refinery construction. Section 450-8..016(g)(3)(C)provides in part:"Each contractor is required to meet its need for workers by hiring trained workers in each apprenticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa,Alameda, and Solano Counties." This requirement would take effect immediately upon enactment. While the term"labor hiring facilities"is not defined,it is presumed the enactment requires all refinery contractors to seek workers first from union halls (and union employees)before hiring other employees. The required use of less experienced workers than would otherwise be hired could potentially put other workers and the public at risk. Under the proposed amendments, if workers experiencedonly in residential';construction(without any background in refinery construction or safety practices)are available through the"labor hiring facilities,"contractors are prohibited from using more experienced workers until they exhaust the supply of the less experienced' 1115—11`1 Street, Smite 15, o Sacramento, Cts 95814 . (916)498-7756 • FAX: (916)444-8997 x wvAA�,wspa.org LADBor 28550385.1100402 1558P 99563173 The Honorable John Gioia October 4,2002 RE:Building Trade's Proposal for Amendments to the Industrial Safety Ordinance Page 2 of 2 workers. The potential impacts of such a requirement have not been adequately assessed by County staff. In fact, the Contra Costa County Public Environmental Health Advisory Board (PEHAB)determined that these amendments would NOT improve refinery safety. In performing its CEQA review, Staff has merely ignored this significant determination. WSPA believes that it is inappropriate and contrary to the interests of the public to establish hiring preferences that could result in less experienced, or even inexperienced, employees performing vital refinery functions. Due to the complex nature of refinery operations, refiners should be allowed to hire the most experienced workers available. WSPA further believes that the potential impacts of mandating the use of less experienced employees has not been properly assessed by Staff. WSPA respectfully requests the Boardof Supervisors reject the Negative Declaration and require a full CEQA review of these amendments,particularly as to its impacts on the availability,training,experience and qualifications of contract workers in refineries. Thank you for your time and attention to this critical issue. Sincerely, WESTERN STATES PETROLEUM ASSOCIATION Dennis Bolt Senior Bay Area Coordinator LADBo128550385.11004021558P 99563173 WS,P1 -Z ? . Wastarn 3tat;at Potrvieutr Assoda#tan Dennis Bolt Bay Area Coordinator (916)498-7756 (916)444-8997 (FAX) Bennis@wspa.org October 6,2002 The Honorable John Gioia Chair,Board of Supervisors Contra Costa County 651 Pine Street Martinez,CA 94553 RE:Building Trades Proposed Amendments to Industrial Safety Ordinance Dear Supervisor Gioia and Fellow Board Members: Thank you for considering these additional comments from the Western States Petroleum Association(WSPA)regarding the reference amendments. As indicated in our earlier letter regarding this matter, WSPA continues to believe that it is inappropriate and contrary to the public interest to establish hiring preferences that could result in less experienced employees conducting vital refinery functions and that the potential environmental and,other impacts of doing so have not been properly assessed by Staff. In addition., we offer the attached comments annotated in bold italics underlined in to the latest draft>>ordinance circulated by your staff. Thank you for your consideration of this matter. Sincerely, WESTERN STATES PETROLEUM ASSOCIATION Dennis Bolt Senior Bay Area Coordinator 1115— I i"I 81reet., Shite 150 Sacramento, CA 95814 - (9961)498-7756 FAX: (916)444-8997 . wv AAA',wspa,org ORDINANCE NO. 2002-' (CONTRACTOR WORKER SKILLS TRAINING AND TESTING,OIL REFINERY SAFETY TRAINING AND SKILLSTESTING,DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION"I. Section 450-8.014 of the County Ordinance Code is amended,by adding subdivisions (p)through(u), defining specified terms; to read: (p)"Bay Area Training Corporation Safety Orientation Program"means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees before they may work in an oil refinery. (q)"Contractor Covered Worker"means an employee of an oil refinery contractor engaged in new construction, maintenance,repair,or turnaround work at an oil refinery involving energized,pressurized,or control systems in the skill areas of electrical,metals,rotating equipment, and instrumentation. (r)"Drug and Alcohol Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50%of the workforce and for cause testing. (s)"Oil Refinery"means a facility with a primary North American Industry Classification System Code ("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 this Chapter,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. B.By adding'subdivision(g), Contractor Safety, to read: (g)Contractor Safety. (1) Application.. This section applies to contractors performing new construction,maintenance or reppair,turnaround,major renovation,or specialty work on or ORDINANCE NO.2002- October 1,2002 adjacent to a covered process. It does not apply to contractors providing,incidental services which do not influence process safety, such as janitorial work, foodand drink services, laundry, or other supply services. (2) Stationary source responsibilities. (A) The stationary source,when selecting a contractor, shall obtain and evaluate information regarding the contractor's safety performance and programs. (B) The stationary source shall inform the contractor of the known potential fire, explosion,or toxic release hazards related to the contractor's work and the process. (C)The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection(12) of subdivision(a)of this section. (D)The stationary source shall develop and implement safe work practices consistent with subsection(2)of subdivision(a) of this section,to control the entrance,presence, and exit of the contractor and contractor employees in covered process areas. (E) The stationary source shall hire only contractors who comply with the provisions of subsection(3)(Contractor Responsibilities) of this subdivision. (F) The stationary source shall periodically evaluate the performance of contractors in fulfilling their obligations as specified in subsection(3) of this subdivision. (3) Contractor responsibilities. (A)Every contractor performing work to which this subdivision applies pursuant to subsection(1)of this subdivision shall, during the first three years after the effective date of this subdivision either(i)have executed an apprenticeship agreement with a bona fide apprenticeship program for each apprenticeable occupation employed by the contractor at the stationary source; or(ii)employ a workforce in which 5O%of the workers in each apprenticeable occupation employed by that contractor at the stationary source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council. It has been stated that this ordittance has a 3- ear i le rttat on period, iri 1 rirt that the re uirentents do not take a ect until tJie north ear a ter adv tine. However as.,dra ted theerequirements would be immCdiatelE a ecti tie with si nr°scant ne atiixe effects orboth cvm an es and workers'in Contra Costa Coun , CoM anies.that do not currently have FLA Is will be rnnwdiatelareclnsed rnrn the wank nrce sand their experienced workers'will not be available to assist ivith re in }turn-grounds and preventive maintenance commenrinpa this winter. rB�� Commencing three years after the effective date of this subdivision, each contractor ORDINANCE NO 2002- -2- October 1,2002 performing work to which this subdivisionapplies pursuant to subsection(1) of this subdivision shall employ(i) only journey level workers in an apprenticeable occupation who have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(D)below,of this subdivision,(ii) employ only apprentices in an apprenticeable occupation who are enrolled in an apprenticeship program for that occupation that has been approved by the California Apprenticeship Council, and(iii) employ only journeylevel workers in an apprenticeable occupation who have completed at least 20 hours of training in skills, construction techniques; and safety for that occupation within the last 12 months at a bona fide apprenticeship program for that occupation. The im ositi n v this provision adversely,h1 acts Contra Costa Coon cornunies and workers, to the extent tlrttt'an untold number of them will be clis laced The county thrc u h this etractmertt outlaws any non-union coMpany frant pgr o in work in a rE,rnery (C) Each contractor is required to meet its need for workers by hiring trained workers in each apprenticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa,.Alameda, and Solano Counties. If'a contractor attempts to obtain trained workers from labor hiring facilities in Contra Costa, Alameda and Solana Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent that grained workers are unavailable. In the event of workforce reductions, a contractor shall'lay- off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection(F)below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. As stater`in previous WSPA comments u vn'-enactntent this provision creates a que at union hulls in the three counties that would p&ce inex erienced trade members at work in 1"E dtteries BEFORE eX erienced workers. C'odrnsta has ailed to evaluate this irr�c ,oct as required by C OA. (D)A journey level worker may obtain a certificate of equivalent training for an apprenticeable occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona 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. This so-called"level lam eld"grovisign dares not exist CAC does:not approve such tests and Itas rry acili ,to do so. Thus no test cats be administered b a public colle a unless'that collaa has area raved apprenticeshr rU ' am o ever•trade. ORDINANCE NO. 2002- October 1,2002 1'lxere& e, there&no level Play in' field In addition,e,wlrt ges o ruin-Trades contractors would not be able to access trairxin required under subsection(F) below. (E) The terms "apprentice"and "apprenticeable occupation7' 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 is a graduate of an apprenticeship program for that worker's occupation approved by the California .apprenticeship Council; or(ii)more than three years after adoption of this ordinance: 'a journey level worker in an apprenticeable occupation who has graduated from an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council or who has obtained'a certificate of equivalent training as provided in subsection(D)above and, in either case,who has completed at least 20 hours of training in skills, construction techniques',and safety for that worker's occupation within the last 12 months at a bona fide apprenticeship program for that occupation or an apprentice enrolled in an apprenticeship program for that apprentice's occupation'that has been approved by the California Apprenticeship Council. This provision blocks new a renticeshi ro' rams:. Toru beinestablished allowing.the current prQkra1#s to monopolize the trainkg of contractor employees.,thereby requiring univnizakon. (F) (i) The contractor shall'assure that each contract'employee is trained in the work practices necessary to safely perform his/her job. (ii)The contractor shall assure that each contract employee is instructed in the known potential fire,explosion,or toxic release hazards related to his/her job'and the process, and the applicable provisions of the emergency action plan. (iii)The contractor shall document that each contract employee has received and understood the training required by this section. The contractor`shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv) The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by ORDINANCE NO. 2002- -4- October 1,2002 subsection''(2) of subdivision (a)of this section. (v) The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (G) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections(3)(A) through(E)of this subdivision. For purposes of this subsection an emergency means a sudden,unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate;loss of,or damage to, life,health,property,or essential public services. (4)Oil Refinery Responsibilities (A) Safety and Skill Training and Testing. (i)An oil refinery shall only employ oil refinery contractors whose contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refinery job to have passed the Oil Refinery Safety Skills Test Program. (B)Drug and Alcohol Programa Oil refinery contractors shall require their contractor- covered workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50%of the workforce and"for cause testing," and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also consider the contractor safety record of the oil refinery contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and IllnessIncident Rate and Worker's Compensation Experience'Modification Rate records for the Oil Refinery Contractor. (Ords. 2002- § 2, 2000-20 § 1, 98-48 § 2.) SECTION III. SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance,or the application thereof to any persons or circumstances is held invalid,such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application, and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION IV. PREEMPTION. Nothing in this ordinance is intended,and nor shall it be deemed,to excuse or prevent compliance with any state or federal law. If any provision of this ORDINANCE NO. 2002- October 1,2002 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 remainderof the ordinance,'and (2)that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance'becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. ; PASSED on by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors'and County Administrator By; Deputy Clerk Chair,Hoard of Supervisors [SEAL] H-,WAZMAPJNMRD\fMa1 100102 draftwpd ORDINANCE NO. 2002- -6- October 1,2002 ORDINANCE NO:2002- (CONTRACTOR WORKER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SKILLS TESTING,DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETYRECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended,by adding subdivisions(p)through(u) defining specified`terms, to read: (P)"Bay Area Training Corporation Safety Orientation Program"`means the eight hour safety orientation program administered by the Bay Area Training Corporation and required for all contractor employees i before they may work in an oil refinery. (q) "Contractor Covered Worker"means an employee of an oil refinery contractor engaged in new construction, maintenance, repair, or turnaround work at an oil:refinery involving energized,pressurized, or control systems in the skill areas of electrical,metals, rotating equipment,and instrumentation. (r)"Drug and Alcohol Testing Program"means the Bay Area Training Corporation Substance Abuse Testing Program for a mobile contractor work farce or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50%of the workforce and for cause testing. (s)"Oil Refinery"means a facility with a primary North American Industry Classification System:Code("NAICS")of 324 (Petroleum and Coal products Manufacturing), (t)`[Oil'Refinery Contractor"means an independent contractor'that provides labor and/or services'to oil refineries for new construction,maintenance,repair,or turnaround work. (+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 this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Cards. 2002- § 1; 98-48 § 2.) SECTION II: Section 450-8.016 of the County Ordinance Code,on Stationary Source Safety Requirements,is amended as follows: A. By deleting subsection(11), Contractors, of subdivision(a), Risk Management Program Elements. B. By adding subdivision(g), Contractor Safety, to read: (g)Contractor Safety. (1)'Application. This section applies to contractors performing new construction, maintenance or repair, turnaround,major`renovation, or specialty work on or ORDINANCE NO. 2002 October 1,2002 adjacent to a covered process. It does not apply to contractors providing incidental services which der 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. (13)The stationary source shall inform the contractor of the known potential fire, explosion,or toxic release hazards related to the contractor's work and the process. (C)The stationary source shall explain to the contractor the applicable provisions of the emergency response program in subsection (12) of subdivision (a)of this section. (D)The stationary source shall develop and implement safe work practices consistent with subsection(2) of subdivision(a) of this section;to control the entrance,presence, and exit of the contractor and contractor employees in covered process areas. (E)The stationary source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities)of this subdivision. (F)The<stationary source shall periodically evaluate the performance of contractors"in fulfilling their obligations as specified in subsection (3)of this subdivision. (3)Contractor responsibilities. (A)Every contractor performing work to which this subdivisionapplies'pursuant to subsection(1) of this subdivision shall,during the first three years after the effective date of this subdivision.either(i) have executed an apprenticeship agreement with a bona fade apprenticeship program for each apprenticeable occupation employed by the contractor at the stationary source; or('ii) employ a workforce in which 50%of the workers in each apprenticeable occupation employed by that contractor at the stationary source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council. It has been,stiatett that this ort.inance has a 3-rear in Vementation Perien4 inwl vitt'-> that the re uirements do not take ej 'w until the Murth vear after ado tion. 11of"ever as tlrtt tet. the requirements would be immediatei°e 'e--rtive, ) th signis nt negative effects Mr both coraranies'and ivor ers i (,"ontry Costa Countv. Comanies that do not currentl =leave PLA. 's mill lye imme�rliatel t ireclosed Lrom they mutLr orce and their e werienved avorkers will not be available to a silt with re ine ,=turn-arounds and rreventrve inainfeit nce errrnniencin ,this r,vinteAt '0 ), Commencing three years after the effective date of this:subdivision,:each contractor ORDINANCE NO.2002 -2- October 1.2002 performing work to which this subdivision applies pursuant to subsection(1)of this subdivision shall employ(i)only journey,level workers in an apprenticeable occupation who have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection (3)(D)below, of this subdivision, (ii) employ only apprentices in an apprenticeable occupation who are enrolled in an apprenticeship program for that occupation that has been approved by the California Apprenticeship Council, and(iii) employ only journey level workers in an apprenticeable occupation who have completed at least 20 hours of training in skills, construction techniques, and safety for that occupation within the last 12 months at a bona fide apprenticeship program for that occupation: The inn osition o `this Provision adversely im pacts:Contru Costa Coin ,com "Hies and )vorkers, to the extent that an unfold number of theist will be displaced 'the count> throe to this i nactrnent outlaws an v non-union companE rom aer orrnin work in a Le iner (C) Each contractor is required to meet its need for workers by hiring trained workers in each apprenticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa, Alameda, and Solano Counties. If a contractor attempts to obtain trained workers from labor hiring facilities in Contra Costa, Alameda and Solano Counties for two normal business days and is unable to obtain all the workers it needs, it may hire other workers only to the extent'that trained workers are unavailable. In the event of workforce reductions, a contractor shall'lay- off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection (1~)below; and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers, Asgated in af•erious WSP4 comments, upwn enactment dais 'roilision creatv rr uc at u-nion halls in the three counties'that would lace inex Jerienced tr°ade inemberR.s at work. in re ineries BEFORE ex reriencerd workers. ' ounn,sta ,'has fafted to evaluale this impact a required br CE . (D)A journey level worker may obtain a certificate of equivalent training for an apprenticeable occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows that the skills of the worker are at least equivalent to the skills of a worker who has graduated:from a bona 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. This sn-galled "lei�el ala vin ielrl" rovision eloes not exist. CAC:dabs the to arov vuvh tuts and Inas no Lavilitr trr do so. Thys no test can he acdministered b =a Public colloe unkess':that college a has an a ros ed a rrentrc°eshi Program Mr eve L trcr! ORDINANCE NO. 2002'- 3- October t 2002 "hexre> irre there is no level plaving i€x r1 In addition em io =ecus of non-Tre descontr actor s, would not be able to tare°e.�s train. ii required trader subsection . b loo (E) The terms"apprentice"and"apprenticeable occupation"shall have the same meaning in this section as those terms do in the California.Labor Code. The term"occupation"refers to an apprnticeable occupation. The term"journey level worker"shall have the same meaning as the term"journeyman" in the California Labor Cade. A bona fine 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 is a graduate of an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council; or(ti) more than three years after adoption of this ordinance: a journey level worker in an apprenticeable'occupation who has graduated from an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in subsection(U)above and, in either case, who has completed at least 20 hours of training in skills, construction techniques and safety for that worker's occupation within the last 12 months at a bona fide apprenticeship program for that occupation or an apprentice enrolled in an apprenticeship program for that apprentice's occupation that has been approved by the California Apprenticeship Council. This Provivion blocks new;.cr renticeslti x rragr°crura Pom being established. allcr Ea qg the current L!2 rams to mono olize the tryining or 'contr'crctor errs Irr ries thereby requiring unioni atiow. (F) (i)The contractor shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job. (ii)The contractor shall assure that each contract employee is instructed in the known potential fire, explosion,or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii)The contractor shall document that each contract employee has received and understood the training required by this section. The contractorshall 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 ORDINANCE NO.'2002- -4- October 002-4October t,2002 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. (tom)Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections(3)(A)through (E)of this subdivision. For purposes of this subsection an emergency means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health,property,or essential public services. (4) Oil Refinery Responsibilities. (A)Safety and Skill Training and Testing. (i)An oil refinery shall only employ oil refinery contractors whose contractor-covered;workers have completed the Bay Area Training Corporation 'Safety Orientation Program. (ii)Oil refinery contractors shall require contractor-covered workers that work independently within an oil refinery and/or who are the lead workers on an oil refinery job to have passed the tail Refinery Safety Skills Test Program. (B)Drug and Alcohol Program. Oil refinery contractors shall require their contractor- covered'workers to participate in a Drug and Alcohol Testing Program that includes pre- employment testing,annual random testing of at least 50%of the workforce and "for cause testing,"and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oiI refinery. (C) Contractor Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery, shall also consider the contractor safety record of the oil refinery contractor, including three most recent years for each of the contractor's OSHA defined Total Injury and Illness Incident Rate and Worker's Compensation Experience Modification Rate records for the Oil Refinery Contractor. (Orris. 2002- § 2, 2000-20 § 1, 98-48 § 2.) SECTION III.' SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance,or the,application thereof to any 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 NO. 2,002-` _5, October 1,2002 ordinance,or the application thereof to any person or circumstances is found by a court of competent jurisdiction to be preempted by any applicable state or federal law,the Board of Supervisors declares its intent (1)that such provision be severable from the remainder of the ordinance, and(2)that the remainder of the ordinance be given effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of the'Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County.' PASSED on _by the following vote: AYES NOES ABSENT: ABSTAIN: ATTEST: John Sweeten,Clerk of the Beard of Supervisorsand County' Administrator By: Deputy Clerk Chair,Board of Supervisors [SEAL]' HAHAZMA'R1NDORD\fina1 100102 drafr.wpd ORDINANCE NO. 2002- -6— October 002-,.(3_October 1>2002 OCT-0e-2M2 W:22 CCCSLFERVISOR JOM G I OI A 510374 3429 P.03/03 5TME OF CALI ORt a GRAY Dors„ Cvrarwr nVAR"1"AIZTO M"U Rgt.AnONS SARI FRWCM CA %102 (41S)701-4M A�3S RMY TO: P.O.Box 420603 San IFr.V W.*. CA 94142 October 8,2002 Mr.John `ola Chairman: Contra Costa County Board of Supervisors PnNSIDER ���� D,2 County Adimrast€ation Building �. 651 Dine Street, Roam 106 Martinez,CA 9455 Via f". (514)374-3429 DW Chairman 0io In response to your inquiry concerning whether or not the Celiftlia►.Apprentioe:ship Council might hsva the authority and capability to owt:ify industry wish oornpeItert6es in celtain apprcndcea able"ations,I be liCve that California Labor Code section 3073.2 which authorizes "htdustxy-specific hair►criteria"could be used to establish minimum training criteria and skill proAdency levels in vahous rdine y o=p=tions if desired. As I mando ted over the lhono,currently seveW indt M Sroups at'o d the state arc mem to establish and cc*uniforat minitthurnn statemda dendards for their Wustries ad occupations; Thr statewide iriutsy cort>rmitte es have participatiott ftow all sectors of their industry partielpfiting int SWO s`4stetcd apprrU11oftl ip pltwtuiac,inouditrg butte utduwiwd and turn- unionized sectors, Similar industry c mmmees could be establi*W far common refinery occupations such as boilernud r or pipefitter. I would bei gland to provide fimber b&rutation on the esabUshment of industry-sic tragi mum or other filar altermovs s that might fill the needs of the Dead and thorn of Cow* Costa refifty aVloyers and their employees. heel fret to contact me at(415)703=4920. Thank you for your intim. Si "ere:ly, + Diait+e Ravaih Deputy Chief TOTAL. P.03 CBCT-08-2002 10:22 GCCSI PERV I SOR JOHN G IOI'A 510 374 3429 P-02/03 .. ,fir ;.+:. .F« .,{•,W•NFwr... rv-Mr. - WMwg1: OF CALWORNIA ... .. .,.{fir. w•.r .... .. y, AV.....,. .. GRA 1 RMUSTKUL ONS 455OMA*NLi mA,''4 31E $I"FLOM SAN FWX=A CA 94102 (412)M-4920 ADIM S REPLY TO- PA No QW3 SendCA V4142 VER�ff DATE• -' TO. FAX# FROM - TAX#. (415)703-5477 PAGES(including carver tetter): COMEl1'l' NI TS. _, U.S. Department of Labor EtrpoMont Training A*an1=#4n x 200 Cams tuttan Avenm,N.W rR washiniton,D.C. 242 t# MAY 10 CERTIFIED MAIL-RETURN RECEIPT REQUESTED OCT 8 20OZ Mr.Stephen Smithy 5UPERvi . Director 35TR GO California Department of industrial Relations I nth Floor 455 Golden Gate Avenue San Francisco,California 94102 Re: Initiation of Derecognition Proceedings Dear Mr.Smith: This is to notify you,as well as the State sponsors,thattheOffice of Apprenticeship Training, Employer and Lahr Services(OATELS)is hereby instituting derecognition.proceedings against the State Apprenticeship Agency for the State of California,(the Californias Department of Industrial Relations or CDIR.),under 29 C.F.R. §29.13. Under the National Apprenticeship Act (NAA),OATELS oversees the national registered appronticesh p system in order to protect the welfare of apprentices'and to promote apprenticeship opportunities. OATELS has determined that reasonable cause exists to believe that the CDTR has failed to fulfill or operate in conforraity with the requirements of 29 C.F.R.Part 29. In particular,the California Labor Code(CLC)§3075(6)provides for CDIR approval of new apprenticeship programs in the'building and construction trades only where apprentice-training needs so justify for the craft or trade and geographic area specified in an application for program registration_ Udder CLC §3075(b),the requisite need can,be demonstrated only where either(l)them is no existing program approved for the craft or trade and geographic wee in question;(2)there is an approved program but that progw sures not have the capacity or neglects or rdvscs to supply employers at a public works site with apprentices; or(3)there is an approved;program but it has been identifiers by the State as deficient in meeting its.obligations. In addition,CLC§3075i(c) provides that the CD1R can approve'a new apprenticeship program when special'circumstances, as established by regulation,so justify. in response to OATELS' repeated txprmions of concern that Cly§3075(b)unacceptably limits apprenticeship opportunities,the CD1R has maintained that the"need muiremeat'is necessary to protect apprentices from transient or exploitative programs. While OATELS shares CDIR.'s concern that only genuine:programa achieve registration,we maintain(hot the State can achieve that goal through measures that cies not have CLC'§3075(b)'s detrimental impact on apprenticeship opportunities. A Proud Member ufAmerioa*sWWoroc Netv+rorrlr 1 OATELS has deterrained that the CPIR's justification for CLC$3075(b)is insufficient,because the statutory requirements which discriminate against new programs are not necessary to achieve the ostensible pwpose(assurance that only bone fide program are approved). Rether,the above-cited terms of'CLC;§3075(bXl> )clearly subordinate the interests of would-be apprentices to the interests of existing apprenticeship pmgramm. Moreover, we understated that CLC§3075(b)has discouraged several California employer groups,such as the Plumbing"Heating.Cooling Contractors(PNCC)and the Western Electrical Contractors Association WECA),Apprenticeship Training Comm tteest from applying for registration. The PNCC and the WECA maintain that it would be futile to apply for approval of new programs because they"need"criteria could never be mast. Those employers further state that increased,apprenticeship program capacity is desperately needed to meet the State's severe shortage of building trades jouracyrnert. The NAA is focused on meeting the needs of workers,not on furthering particular apprenticeship programs. In contrast,CLC 3075(b),even as ameliorated by CLC 13075(c),imposes processes that prevent or inexcusably delay efforts to advance apprenticeship. Therefore.OATELS has concluded that the overall impact of the"need requirement'`is to improperly restrict,rather than prornote,apprenticeship opportunities for workers,contrary to the letter and spin t of the NAA,. To remedy the identified nonconformity,the State of California needs to tepeal CLC§3075(b).1 Pending legislative action,we would be prepared to suspeted tete derecognition proceedings were the State to(1)issue and implertnent a regulation(including emergency regulatory action taking, immediate,effect,if necessary due to procedural requirements for conventional rulemaking), tender CLC§3075(c),which provides that the OATELS finding of onco0orneity constitutes a "special circumstance,"under CLC 43075(c).lb*su;wsedes CLC§3075(b)for the purport+of registering,new apprenticeship programs in the building and construction trades,and(2)process applications for registration without regard for the"need requiremmene'of CLC§3075(b). The promulgation of the regulation would need to be accompanied by a4 fbrmal opinion from the California.Attorney General's Office starting OW the interim regulatory remedy was valid under California law. OATELS proposes to withdraw tacognition for Federal purposes unless corrective action is taken,or a hearing request mailed,within*34 days 6f the receipt of this rwti e. } This legislative remedy would,presumably,include the repeal of CLC§3£175(c),as that provision functions solely<n relation to CLC*3075(b)- 2 2 OATELS remains ready to work with you to resolve this situation.We have enclosed sample text for the necessary legislative and regulatory remedies to facilitate corrective action. Please contact me if I can be of fwther assistance. Sincerely, ANTHO 'Y SWO Administrator Office ofApprenticeship"raining,Employer and Labor Services Enclosure cc: California apprenticeship program sponsors Bray Davis,Governor John Burton,,President Pro Tom of the State Senate Richard Polanoo,Majority Leader of the State eta James L. Brulte, Senate Republican Leader Herb'We:mn,Speaker of the Assembly Fred Keeley,Speaker Pro Tempore Kevin Shelley,Majority Leader of the Assembly Dave Cox, Assembly Republican Leader 3 3 OCT—OB--2002 10*22 CCCSUPERVI5OR JOHN GIOIR510 374 3429 P.03/03 STATE OF CALIFORNIA OKAY DAVIS. Cvft"wr OVATt'MGW OF U41}1l MA-nONs AFTM DI VI ON OF A PMIMC2'8RIP STANIt►a�tr►9 455 G<T.M`GATR AVENUE,SM FLOOR SAN FRANCISCO.CA 94102 (41S)'703-44211 ADMWM ttMY TO- F.O.Box 420603 San Trm*ca. CA 14141 October 8,2002 Mr.John Giola Chaimman Contra Costa Comaty Board of Supervisors CODER''��T D'2 County Administration Buildit 651 Pine Street, Room 106 Mwfttez,CA 94553 Via fax. (SIO)374.3429 Dear Chairman 4ioia: in response to you*may concerning whether or not the California Apprenticeship Council might have the authority and capability to awt4 induetry wide competencies in aertain apprmnticeable occupations,I believe that California labor Code section 3073.2 which authorizes I'Inds try-specift traits criteria"coWd be used to establish minimum training ctitesia and skill proficiency levels in various refinery occupations i#dcsiired, As I mentioned over the phone,currently several induMY VMS around the state are meeting ter establish and ca uniform mminmu m!stattwide standards for tb*industri"and occupations. These'statewide industry committees have psrticipetiott from all sectors of Their industry participadna in state r*sttlerl app asatimlip p1tvaues,iuvlutling Goth wsunimd and 4()U- unionized sectors. Similar industry committees could be established for common refinery occupations such as boilermaker or pipefitter. T would be glad to provide Further information on the establisivaievat of industry-specific Milling witerii►or other swular alterouives that might fill the needs ofthe Board and those of Contra Cost&refinery employers,and their employees. Feel Free to contact me at(415)7034920. Thank you For your interest, Diane Ravuih DePty Chief i vV � �s TOTAL 'P.03 OCT-08-200210:22 CCCSUPEVSORJOCI01i 510374 3429 P.02/03 .. r ...i .:, ..y. . y.. . . .y.Meyw./M:. r.r-wr•. ..MI�ISM�t: STATE OF tWAYDAVr4 Gowbw RMSIVIAL MATXM LOMON N OF Arr#X"ML flV STA R ' S"fItAy,=C 1,CA 94102 P.O.Boot 3' S+nFhacbak CA 94142 -� DANE. l 1 TO: FAX FAX#. (415)703-5477 PACES(including cover letter): OCT--- 4-2002 04 :34 PM DENNIS-BOUT ytCk b r a 7esoZ) V . Wr R WWSP16olat-n Dennis'snit Bay Area cmdriator (9 16)498-7756 (916)444-8997(FAX) : dennisOwspa.org October 4,2002 The Honorable Jahn Gioia Chair,Board of Supervisors Contra Costa County 651Pine Street Martinez,California 94553 RE Building Trade's Proposal for Amendments to the Industrial Safety Ordinance Deer Supervisor Gioia and Members of the Board: The Western States Petroleum Association(WSPA)is a trade association that represents the majority of petroleum related interests'involved in the production,transportation,refining and'marketing of petroleum products in the western United States. Thank you for the opportunity to comment on the proposed draft amendments. WSPA believes that County staff has underestimated the potential impacts of the proposed ordinance,and has failed to adequately represent the public record in its verbal report on the California Environmental Quality.Act(CEQA)analysis made at the Board's September 17'x`meeting. The proposed amendment is likely to result in the replacement of experienced employees with less experienced,or even inexperienced employees, WSPA believes that it is in the refiners'and the public's best interest to hire the most experienced employees available due to the sophisticated and technically complex nature of refinery operations. The potential impacts of a requirement that could replace more experience employees is acritical issue that requires a complete and thorough review of potential impacts. T-bgd clean a bush a Kirin refer nce t ime i tel u on doo would'likel r wire Kiri workers with little or no ref' a ex 'once in place of wgrkers that are'Werienced in refiM construction. Section 450-8.016(g)(3XC)provides in part: "Each contractor is required to meet its need for workers by hiring trained workers in each appr+enticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa,Alameda,and Solano Counties." This requirement would take effect immediately upon enactment. While the term"labor hiring facilities"is not defined,it is presumed the enactment requires all refinery contractors to seek workers first from union halls (and union employees)before hiring other employees. The required use of less experienced workers than would otherwise be hired could potentially put other workers and the public at risk. Under the proposed amendments,if workers experienced only in residential construction(without any background in refinery'construction or safety practices)are available through the"labor hiring facilities,"contractors are prohibited from using more experienced workers until they exhaust the supply of the less experienced 1115— 11"'Street, Stene 150 Sacramento: CA 958 t4 (916)498-7756 • FAX: (918)444-8997 - www wspa org 0C,T-;z 4-2'402 04 :35PM DENNIS-BOLT 925 671 9665 P. 03 The Honorable Jahn Gioia October 4,2002 RE:°Building Trade's Proposal for Amendments to the Industrial Safety Ordinance Page 2 of 2 workers. The potential impacts of such a requirement have not been adequately'assessed by County staff. In fact,the Contra Costa County Public Environmental Health Advisory Board (PEHAB),determined that these amendments would NOT improve refinery safety. In performing its CEQA review, Staff has merely ignored this significant determination. ' SPA believes that it is inappropriate and contrary to the interests of the public to establish hiring preferences that could result in less experienced,or even inexperienced, employees performing vital refinery functions. Due to the complex nature of refinery operations, refiners should be allowed to hire,the most experienced workers available. WSPA further believes that the potential impacts of mandating the use of less experienced employees has not been properly assessed'by Staff WSPA respectfully requests the Board of Supervisors reject the Negative Declaration and require a tall CEQA review of these amendments,particularly as to its impacts on the availability,training,experience and qualifications of contract workers in refineries. Thank you for your time and attention to this critical issue. Sincerely, WESTERN STATES PETROLEUM ASSOCIATION anis Bolt Senior Bay Area Coordinator OCT—Q4-270204 :34 PM DENNIS—SOLT WWSP .- Warterrr Itbtrr Prtreleum I••aoiotaon Donk Bolt Bay Arent Coord tator (916)498-7756 '(916)4448997(FAX) c ennIsOwsps.or October 4, 2002 The Honorable John Gioia " Chair,Board of Supervisors Contra Costa County 651 Pine Street Martinez,California 94553 RE: Building Trade's Proposal for Amendments to the Industrial Safety;Ordinance Dear Supervisor Gioia and Members of the Board: The Western States Petroleum Association(WSPA) is a trade association that represents the majority of petroleum related interests involved in the production,transportation,refining and marketing of petroleum products in the western United States. Thank you for the opportunity to comment on the proposed draft amendments. WSPA believes that County staff has underestimated the potential impacts of the proposed ordinance,and has failed to adequately represent the public record in its verbal report on the California Environmental Quality Act(CEQA)analysis made at the Board's September 17'h meeting. The proposed amendment is likely to result in the replacement of experienced employees with less experienced,or even inexperienced employees. WSPA believes that it is in the refiners' and the public's best interest to hire the most experienced employees available due to the sophisticated and technically complex nature of refinery operations. The potential impacts of a requirement that could replace more experience employees is'a critical issue that requires a complete and thorough review of potential impacts: o clea_rLy establish a hidn r ferwe tha itnme i l u n do o'.Muld Likely uiro hijag workers with little or no reflAM ex ri ncc inlace of w rk t t g eri c ` refin c strc tion. Section 450-8.016(g)(3)(C)provides in part: "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 mailable from labor hiring facilities in Contra Costa,Alameda,and Solano Counties."' This requirement would take effect immediately upon enactment. While the terra"labor hiring facilities"i5 not defined,it is presumed the enactment requires all refinery contractors to seek workers first from union balls (anal union employees)before hiring other employees. The required use of less experienced workers than would otherwise be hired could potentially put other workers and the public at risk. Linder the proposed amendments, if workers': experienced only in residential construction.(without any background in refinery construction or safety practices)are available through the"labor hiring facilities," contractors are prohibited from using more experienced workers until they exhaust the supply of the less experienced ills- 11#1 Street, Sprite 150 Sacramento,CA 9$814 » (.916)490-7756 • FAX (918)444-8997 • www wspa org €dCT'-- 4-2,',aO2 04 :35 PM DENNIS—BOLT 925 671 9 665 P. 03 The Honorable John Gioia October 4,2002 RE:Building Trade's Proposal for Amendments to the Industrial Safety Ordinance Page 2 of 2 workers. The potential impacts of such a requirement have not been adequately assessed by County staff. In fact,the Contra Costa County Public Environrnentat Health.Advisory Beard (P E. AB)determined that these amendments would NOT improve refinery safety. In performing its CEQA review, Staff has merely ignored this significant determination. WSPA believes that it is inappropriateand contrary to the interests of the public to establish hiring preferences that could result in less experienced,or even inexperienced, employees performing vital refinery functions Due to the complex nature of refinery operations, refiners should be allowed to hire the most experienced workers available. WSPA further" believes that the potential impacts of mandating the use of less experienced employees has not been properly assessed by Staff WSPA respectfully requests the Board of Supervisors reject the Negative Declaration and require a full CEQA review of these amendments,particularly as to its impacts on the availability,training,experience and qualifications of contract workers in refineries. Thank you for your time and attention to this critical issue, Sincerely, WESTERN STATES PETROLEUM ASSOCIATION nnis Bolt Senior Bay Area Coordinator FROM; Tom STEWART To: JOHN SWEETEN BATE: 1017102,TIME: ?:oz:a a PM PAGE 1 OF 1 r CALIFORNIA 'CONTRAcToRS AL.L.IANCE P.0.6ox 661,Benicia,CA 94510 Voice Mail(707)746-5594 www.coaconstruds.org Asap Twico,km October 7,2002 Moan. John Gioia 13c rem hwuim&MAmm,INc. Chairman,Burd of Supervisors T Contra Costa County 11780 San Pablo Ave. Suite D COW ftTA CWRTWXrons El Cerrito,CA 94534 JOM P41MM&COATM,1W. Dear Chairman Gioia. V Re: Agenda item,D.2-Consider Accepting Status Report from the Pn*OCMW I ULATM,1Na. Community Development Department Director and Health Services Director V on Proposed Amendments to the Industrial Safety Ordinance and Actions to Puwr NliuWaffi rce iac. Be Taken V On behalf of the California Contractors Alliance(CCA),I would liketo &MR(Sow Asn 8?r W0A formally request that our organization be afforded time at the upcoming CaHstaul,W. meeting,of the Contra Costa County Board of Supervisors(Board)on '.Tuesday, October 8,2002, to make a presentation on Agenda Item.D.2. SrARM Ixrena+TWkM„be. At its meeting on Tuesday,,September 17 2002„both the Contra Costa V County Building and Construction Trades and the Comrnittee'for Industrial 17MEC Ct mmy,lrvc. Safety(i.e.the four Contra Costa ref=ry managers)were allocated time to TK TOM QWV of CWMM make an organized presentation to the Board_ We would ask that the sattye opportunity be worded to us in that the non-Building Trade contractors will be equally impacted if the Board passes the draft ordinance and we have new UCI Ca++axMMM,'ixe. and relevant information to present for its consideration. Please contact me at 707-644-7455 xl 11 should you have questions UMMWW1W ce mucnow regarding this communication. cow"Y'110C. Sincerely yours, -��eaIZD Pat Leiser President FROM:TOM STEWART TO: CLERK OF THE BOAR© DATE: 1017102 TIME; 1.04:04 PM PAGE 1 OF 1 aCwmcroa a L JI lII10E P.a.Box 801,Benicia,CA 94610 Voice Mail(707)746-6594 WWWx0awnstructs.0fq 1 Two, October 7,2002 v Hon.John C"a. NWM FMWAMN&lYLAAW,hie. Chairman,Board of Supervisors Contm Casts County, 11780 Sem Pablo Ave.Suite Z3 CMV Oleg►COMMc'IS El Cerrito,CA 94530 jow Pam"&avows.he Dear Chairman Gioia:, Re Agenda h=4 D.2-Consider Accepting Status Report from the Poncon bWAMON,'hr- Community Development Department'Director and Health Services Director ♦ on Proposed Amendments to the Industrial Safety Ordinance and Actions to Be Taken On behaifofthe California Cortractom Alliance(CCA),I would like to SOMMIU rr AM STOMML formally request that out organization be afforded time at the upcoming COWMUMbr— meeting of the Contra Costa County Board of Supervisors(Board)on Tuesday,October 8,2002,to make a presentation on Agenda Itean D.2: SMM=kmrU=NM,bC. At its me ns on Tuesday, September 17,2002,both the Contra Costa County Budding and Construction Trades and the Committer for Industrial TMEC Se ty(i.e the four Contra Costa r ry r agm)�allocated time to Comm,nuc. snake an organized presentation to the Board. We would ask than the same TwTsw Qww w C0N"" oprpofav ity be afforded to us in that the non-Building Trade contrarctore wiu be equally impacted if the Board passu the dram ordirtance and we have new U0 COMMVM^kv- and relevant hdbrination to present for its consideration. 7 Please constant me at 707-644-7455 xt l I should you have questions UNINUMoumr CmSTAM rE rem this cominwucation. CClifw/If M. Sirrcerdy yours, Paws" Preairlent: FROM:TOM°1:,STEwNART TO:CLERK OF THE HOARD DAM 10M02 'TIME: 1:04:04 PM PAGE 1 CE 1 CAL MIA COWUMNA PO.Jim Set,E tta,CA 9010 Vole Mail MM 74"M wwar 0cawastrueta org Asm Uas.br- October 7,2002 v H<m.701n Gioia Biwaf�g 1 ,tat: Chairman,Beard of Supervisors Coma Costa county 1.1760 San Pablo Ave. Suite D Carar DKU COMUMMOS El Cerrito,CA 94530 imm PAWN&Co NMW sac. Dear Chairman Gioia: • Re: Agenda sten%D.2 Consider Accepting Status Re"from the Pampaam bXWA=k tie. Commmnty Development Depnoma Viector and!I alth Services Director on Proposed Amendments to the Industrial Sammy O€c"linsnre and Ammons to PUM M'WMWA ,W— Be Taken On behalf ofthe California Contract=Alliances(CCA),I would like to xtat grams fob reoluest'that our organization be allied time at theupcoining , ,, of the Contra Costa+Cdugty Board ofSuperrdsors(Board)on w Today,'October 8,2002,to make a presentation on Agenda Item 13.2. r k n MW.ire. At its meeting on Tuesday,Septennber 17,2002,both the Comm Costs r County ty Building and ConstruKtiort Trades and the Committee for Irtdu&W 11NI .INc. Samar Q,* the four Contra Costa nay managers)were allocated timer*to Tie*iwlar r err Caar m an Orgulized,Presentation to the Board. We would ask that the same oppostn ty be afforded to us in that the non.Building Trate loft will be equally hnpaeted if the Board passes the draft Ordinance and we.have new Uq cmavenmk sac. and relevant Uftmation to pmts for its consideration. v Plewa contact me at 7074W7455 xl 1 f shouldhave yow questions UMMMOUNSCOMMMM regardlgg this cpm cxtion Co +r,ice. Sincerety yours, Pat Tomer President Attachment i ORDINANCE NO. 2002-, (CONTRACTOR'ORDER SKILLS TRAINING AND TESTING, OIL REFINERY SAFETY TRAINING AND SOLS TES'T'ING,DRUG AND ALCOHOL TESTING AND CONTRACTOR SAFETY RECORD) SECTION I. Section 450-8.014 of the County Ordinance Code is amended,by adding subdivisions (p)through(u) defining specified terms,to read: (p)"Bay Area Training Corporation Safety Orientation Program"means the eight hour safety orientation program administered by the Bay Area'Training Corporation and required for all contractor employees before they may work in an oil refinery. ( ) "Contractor Covered Worker"means an employee of an oil refinery contractor engaged in new construction, maintenance, repair, or turnaround work at an oil refinery involving energized, pressurized, or control,systems in the skill areas of electrical,metals,rotating equipment, and instrumentation. (r) "Drug and Alcohol Testing Program"means the Bay;Area'Training Corporation Substance Abuse Testing Program for a mobile contractor work force or an equivalent substance abuse testing program that includes pre-employment testing, annual random testing of at least 50%of the workforce and for cause testing, (s) "Oil Refinery"means a facility with a primary North American Industry Classification System Code("NAICS")of 324 (Petroleum and Coal Products Manufacturing). (t) "Oil Revery Contractor"means an independent contractor that provides labor and/or services to oil refineries for new construction,'maintenance, repair,or turnaround work. (u)"Oil Refinery Safety Skills Test Program"means the oil refinery safety skills test program administered by the Bay Area Training Corporation on the effective date of this Chapter, as it may be subsequently modified or amended by the Bay Area Training Corporation. (Orris. 2002- § l; 98-48 § 2.) SECTION II. Section 450-8.016 of the County Ordinance Code, on Stationary Source Safety Requirements,'is amended as follows: A. By deleting subsection(11), Contractors, of subdivision(a),Risk Management Program.Elements. B. By adding'subdivision(g), Contractor Safety,to read: (g) Contractor Safety. (1)Application. This section applies to'contractors performing new construction, maintenance or repair, turnaround,major renovation, or specialty work on or ORDINANCE NO. 2002`= Oclwber 1,2002 adjacent to a covered process. it dares 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)The stationary source shall hire only contractors who comply with the provisions of subsection(3) (Contractor Responsibilities)of this subdivision. ( The stationary source shall periodically evaluate the performance of contractors in fulfilling their'obligations as specified in subsection(3)of this subdivision. (3) Contractor responsibilities. (A.) Every contractor performing'work to which this subdivision applies pursuant to subsection(1) of this subdivision shall, during the first three years'after the effective date of this subdivision either(i)have executed an apprenticeship agreement with a bona fide apprenticeship program for each apprenticeable occupation'employed by the contractor at the stationary source;or(ii)employ a workforce in which 50% of the workers in each apprenticeable occupation employed,by that contractor at the stationary source are graduates of an apprenticeship program for that occupation approved by the California Apprenticeship Council. (B)Commencing three years after the effective date of this subdivision,each contractor perforating work to which this subdivision applies pursuant to subsection(1)of this subdivision shall employ(i) only journey level workers in an apprenticeable occupation who have graduated from an apprenticeship program for that occupation approved by the California Apprenticeship Council or who have obtained a certificate of equivalent training as provided in subsection(3)(D)below, of this subdivision, (ii)employ only apprentices in an apprenticeable occupation who are enrolled in a apprenticeship program for that occupation that has been approved by the California Apprenticeship ORDINANCE NO. 2002= _2_ ortoher 1:2002 Council; and(iii) employ only journey level workers in an apprentceable occupation who have completed at least 20 hours of training in skills,constructiontechniques, and safety for that occupation within the last' 12 months at a bona fide'apprenticeship program for that occupation. (C)Each contractor is required to meet its need for workers by Miring trained workers in each apprenticeable occupation to the extent that trained workers are available from labor hiring facilities in Contra Costa, Alameda, and Solana Counties. If a contractor attempts to obtain trained workers from labor hiring facilities in Contra Costa, Alameda and Solano'Counties for two normal business days and is unable to obtain all the workers it needs,it may hire other workers only to the extent that trained workers are unavailable. In the event of workforce reductions, a contractor shall lay-off other workers before trained workers. A contractor who hires workers other than trained workers shall comply with subsection(F')below;and the contractor shall provide such supplemental supervision as may be necessary for workers other than trained workers. (D)A journey level worker may obtain a certificate of equivalent training for an apprenticeable occupation by completing a test consisting of both a written examination and a manual skill demonstration which shows:that the skills of the worker are at least equivalent to the skills of a worker who has graduated from a bona 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. (E)The terms"apprentice" and"apprenticeable occupation"shall have the same meaning in this section as those terms do in the California Labor Code. The term "occupation"refers to an apprenticeable occupation. The term"journey level worker"shall have the same meaning as the term"journeyman"in the California Labor Code. A bona fide apprenticeship program is one that has been approved 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 is a graduate of an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council,or(ii)more than three years after adoption of this ordinance: a journey level worker in an apprenti4zeab1c occupation who has graduated from an apprenticeship program for that worker's occupation approved by the California Apprenticeship Council or who has obtained a certificate of equivalent training as provided in subsection(D)above and, in either case,who ORDINANCE NO 2002- -3- October 1,20021 has completed at least 20 hours of traig in skills, construction techniques and safety for that worker's occupation within the:last 12 month at a bona,fide apprenticeship program for that occupation or an apprentice enrolled in an apprenticeship program for that apprentice's occupation that has been approved by the California Apprenticeship Council. (F)(i)The contractor shall assure that each contract employee is trainedin the work practices necessary to safely perform his/her job. (ii)The contractor shall assure that each contract employee is instructed in the known potential fire,;explosion, or toxic release hazards'related to his/her job and the process, and the applicable provisions of the emergency action plan. (iii)The contractor shall document that each contract employee has received and understood the training required by this section. The contractor shall prepare a record that contains the identity of the contract employee, the date of training and the means used to verify that the employee completed the training. (iv)The contractor shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by subsection(2) of subdivision(a)of this section. (v)The contractor shall advise the stationary source of any unique hazards presented by the contractor's work or of any hazards found by the contractor's work. (G) Contractors performing work immediately necessary to respond to an emergency shall be exempt from the provisions of subsections (3)(A)through(E) of this subdivision. For purposes of this subsection an emergency means a sudden,unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life,health,property, or essential public services: (4) Oil Refinery Responsibilities. (A) Safety and.Skill Training and Testing. (i) An oil refinery shah only employ oil refinery contractors whose'contractor-covered workers have completed the Bay Area Training Corporation Safety Orientation Program. (ii) OR refinery contractors'shall require contractor-covered workers that work:independently within an oil ref€hery and/or who are the lead workers on an oil refinery job to have passed the Oil Refinery Safety Skills Test Program. (B)Drug and Alcohol Program. °Oil refinery contractors shall require their contractor- covered workers to participate in:a Drug and Alcohol Testing Program that includes pre- employment testing, annual random testing of at least 50% of the workforce and"for cause testing,"and shall verify that their contractor-covered workers are actively enrolled in such program prior to allowing their contractor-covered workers to work in any oil refinery. (C)Contractor-Safety Record. In hiring oil refinery contractors whose contractor covered workers otherwise meet the requirements of this section, an oil refinery shall also ORDINANCE NO. 2002- -4- October 1,2002 consider the contractor safety record of the oil refinery contractor; including three most recent years for each of the contractor's OSTIA defined Total injury and Illness Incident Rate and Worker's Compensation.Experience Modification Rate records for the Oil Refinery Contractor: (Ords. 2002-_ § 2, 2000-20 § 1,98-48 § 2.) SECTION III , SEVERABILITY. This ordinance shall be construed to achieve its purpose and preserve its validity. If any provision of this ordinance, or the application thereof to any persons or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application,and to this end the provisions of the ordinance are declared to be severable and are intended to have independent validity. SECTION 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 givenn effect in accordance with the provisions of Section IV of this ordinance. SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the nines 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: AWES: > NOES ABSENT: ABSTAIN: ATTEST: John Sweeten, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Chair, Board of Supervisors [SEAL] ORDINANCE NO. 2002- -5_ October 1,2002 Attachment 2 Reporting Of Safety Statistics t0 OSHA and Workers' Compensation 'Systems Introduction The Board of Supervisors at their September 17,:2002 meeting asked staff to look at the potential underreporting of work4elated injuries and illnessesto OSHA and to Workers' Compensation Systems. The Board indicated that they would'like to have some basis for the oil refineries to compare the different contractor's safety record, so that the contractor with the best safety record could be hired to supply workers to the oil refineries as needed. The two most used metrics that are used to judge the overall safety in industry include the OSHA records on the 'number of injuries and illnesses that are 'reported and can be attributed to the requirements of the worker's'' job and the "Worker's Compensation Systems Experience Modification Rate(EMR). OSHA Recordables Employers are required to report to OSHA when there is an injury and illness that is job related. 29 CFR, Part 1910, Section 1904.12(c) defines "Recordable occupational injuries or illnesses are any occupational injuries or illnesses which result in: (1) Fatalities, regardless of the time between the injury and death, or the length of the illness; or (2) Lost workday cases, other than fatalities, that result in lost workdays,* or (3) Nonfatal cases without lost workdays which result in transfer to another job or termination of employment, ;or require medical treatment (other than first aid) or involve: loss of consciousness or restriction of works or motion. This category also includes any diagnosed occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday cases. " OSHA has:requirements for reporting and recording the different injuries and illnesses, a requirement that OSHA has access to records,'and penalties for any knowingly false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained. The person making the false report is subject to a fine of not more than $10,0030, or by imprisonment, for not more than 6 months,or both. Experience Modification Rate The EMR is dependent on the number of claims made for workers' compensation in California. Staff Report on Underreporting of Work-Related Injuries and Illnesses October 8,2002 Underreporting Lenore S. Azaroff, ScD';Charles Levensteiu, PhD, MOH, and David H. We m n, MD, PH authored. a;September 2002, Vol. 92, No. 9 article in the American Journal of Public Health. The author's reference 13 different reports that show that the Bureau of Labor Statistics underestimate the incidence of work related injuries, illness, and even fatalities by as much as several hundred percent. The article lists several filters or barriers to reporting of injuries and illnesses that include: + Reporting to Supervisors iLost Work Time + Medical Gare for Work-Related Injuries and Illnesses + Recognition of Work-Related Injuries and Illnesses + Charging Medical Gare to Workers' Compensation + Recording incidents in OSHA logs •' Reporting of Injuries to Workers' Compensation Agencies The description of these barriers is below. The article also discusses some of the differences in union and nonunion reporting of illnesses'and injuries. Reporting to Supervisors "Workers who report health problems to supervisors may risk disciplinary action, denial of overtime or promotion opportunities, stigmatization, drug testing, harassment or job loss. Others may fear such outcomes even in the absence of demonstrable risk. Some safety incentive systems reward workers who do not report injuries with money, material goods, or recognition." The article also states that most construction workers may risk opportunities for future job assignments by reporting health problems. Last Work Time "Workers who do inform their supervisors of an injury of illness may not be able to afford lost work time. Workers' compensation partial wage replacement becomes available only after a minimum number of lost workdays." Compensation may only pay for a portion of lost wages, often does not cover the:first several'lost clays, and takes several weeks to,get paid and could be denied altogether. Medical Care for Work-Related Injuries and Illnesses Employers' have different ability to give "first aid", which is not included in the recordable statistics. "Sonne 'companies provide care for work-related musculoskeletal disorders and ether injuries in-house, providing''splints, ice, exercise, anti-inflammatory medication, and other treatments and define these as ;first aid'." "Workers who do not expect their condition to be covered by workers'compensation may forge medical care awing to lack of access to or familiarity with alternative methods'of payment. Page 2 of 4 Staff Report on underreporting of'Work-Related Injuries and Illnesses October 8,2002 Recognition of work-related Injuries and Illnesses "Workers who obtain medical care may not perceive a connection between their health problems and their jobs, a problemreinforced by lack of hazard communication at the worksite. . .'Lack of recognition is especially likely for diseases with long latency periods, symptoms common to nonoccupational disorders, or multiple causal factors.;, These include nonpneumoconiotic chronic respiratory illness, cancer, heart disease, renal disease, and neurological disorders. Charging Medical Care to 'Workers' Compensation "Filing compensation claims `'can raise employers'premiums, while changing ordinary health insurance 'coverage usually does not. Employers typically,pay all compensation insurance costs with no co payments by employees. In the construction industry, contractors'records of compensation claims also affect their competiveness in contract bids. (Emphasis added) As a result, some employers warn their employees not to tell their doctors that they were hurt at work Some maintain medical professionals on staff, or train nonclinician staff to treat',injured employees, and cover the costs." Recording incidents in OSHA logs "In 1987 the National academy of Sciences found that several of the largest corporations in the united States engaged in serious and willful', underreporting of work-related injuries. .Reasons included the desire to avoid OSHA inspections as well as competition among companies and among plants within a company to recordlow injury rates and enhance supervisors'performance evaluations. " The article also states that employers may record occupational injuries and illnesses in ways to protect the business from liabilities. Reporting of Injuries to Workers' Compensation Agencies "As with medical'compensating, employers may avoid filing wage-replacement'claims'to- control their insurance rates. Workers are permitted to file for wage replacement themselves,: but they may not know this. Other workers may choose not'tofile because compensation pays only a portion of lost wages and does not cover other expenses related to the injury." Reporting Differences Between Union and Nonunion Companies The article states that there could be differences between the reporting rates of union and nonunion companies. The barrier of reporting to their'supervisor may not be as large a barrier for union employees as for nonunion employees. "Members'of active unions may have support for safely reporting health problems." The union companies may have better benefits that reduce the concerns of losing wages because of-work-related injuries or illnesses. "Lack of sick leave benefits,:- especially common in nonunion employment, may prevent these workers from missing work." The article also suggests that union workers also tend to know their rights for workers' compensation better than nonunion workers and have support of their local'union. Page 3 of 4 StaffReport can Underreporting of Work-Related Injuries and Illnesses October 8,2002 Cone, cs ons Underreporting of injuries and illnesses to (OSHA and for California Workers' Compensation dries exist. There may also be greater underreporting from nonunion employers than from union employers. One of the barriers for companies to report work-related injuries and illnesses is tying their OSHA recordable rates to selection of contractor. This is considered a deterrent to reporting. Recommendations The OSHA recordable statistics and the EMR are the most universal metrics that can be used to determine the safety records of companies. OSHA has penalties for knowingly underreporting of work-related injuries and illnesses. Staff is recommending that the ordinance require'that the oil refineries consider the (OSHA recordable and.EMIL statistics in their selection of contractors. Staff is also recommending a requirement that if there is a company that is demonstrated by OSHA to have underreported that company should be moved to the lowest priority for the hiring of contractors by an oil refinery for a twelve- month period. Page 4 of 4 OCT-09-2002 091-23 P.01/05 cr t .....«.__,.. _ two t fir, v E� Q URI cr rr �; .,.w ego � : ('� � ... C «� �-.. ;► �}_ �• �'7, �_ � ,� +fit r�", - ' i � ��qi �,.". rte' �. � t� ►C�! *tt �r�yi � ,',}" �t' �,�' n�„r CL iQ tri t +ten Zom ig b E 00 G eb cz P!' (�({E . +s31 ��ey > ge l C6 0 �. !� Ca• �'` � � to +� � (�, �:.„ � � �;, '. : ���.. I� �. � � �, sem• �' � °�' � � " �. OCT-09-202 09*-23 P.02/05 Pau t Op cr aw 14 1 W i . 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