HomeMy WebLinkAboutMINUTES - 04221997 - D3 'TO: BOARD OF SUPERVISORS
Contra
FROM: William Walker, M.D. , s
Costa
Health Services Director ' s
County
sra'cboN`�
DATE: March 27, 1997
SUBJECT: Health and Safety Code Section 101085
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
L RECOMMENDED ACTION:
AMEND the Board's 1997 legislative program in order to add the following item:
AMEND Health and Safety Code section 101085 by adding new subsection'(C)to read as follows:
(1) After a release or threatened release of a hazardous material from the premises of a
handler, which release or threatened release poses a significant present or potential hazard
to human health and safety, property, or the environment, the local health officer, in addition
to the powers enumerated in subsection(a), may subpoena any books, papers, and documents
in the possession or control of a handler, employee, representative, agent, or designee of the
handler, relating to the release or threatened release of the hazardous material, and may
subpoena any person or any employee, representative, agent, or designee of the handler, and
require such persons to testify under oath concerning all matters relevant to the release or
threatened release of the hazardous material.
(2) The terms "release", "threatened release", "hazardous material", and "handler" shall
each have the same meaning as are ascribed to each of those terms in section 25501 of chapte r
6.95 of division 20 of this code.
As this is a mid-year proposal, the Board recognizes that the County's lobbyist will need to seek a
germane bill that can be amended to include the above language, and that the nature of opposition
to the language, should there be any, may affect the success of his efforts.
II. FINANCIAL IMPACT:
None.
III. REASONS FOR RECOMMENDATIONS/BACKGROUND:
Although the Health Officer and/or the Certified Unified Program Administration (CUPA) have
certain jurisdiction over the storage of hazardous materials and the handling of hazardous wastes,
there is no explicit authority for the Health Officer or CUPA to investigate causes of industrial
accidents which may involve hazardous materials or hazardous waste.
CONTINUED ON ATTACHMENT: X YES —NO SIGNATURE: �^"' K1,�✓ �
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON April 22, 1997 APPROVED AS RECOMMENDED OTHER X
IT IS BY THE BOARD ORDERED that action on the above item is DEFERRED.
VOTE OF SUPERVISORS
X I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS (ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
Contact Person:Elinor Blake 370-5022 April 22 1997
CC: Health Services Director ATTESTED
County Administrator PHIL BATCHELOR,CLERK OF THE BOARD OF
County Counsel SUPERVISORS A OUNTY A0,NISTRATOR
Claude Van Marter
HazMat(via HSD)
BYDEPUTY .
Board of Supervisors page 2
Health and Safety Code 101085
1 March 27, 1997
In preparing a "Preliminary Report on Hazardous Materials Incidents and Other Notifications in
Contra Costa County, 1989-1996," presented to the Board of Supervisors on August 29, 1996, the
Health Services Department found that only limited information was available about the causes of
incidents (pp. 14-15). For many of the 37 incidents which may have posed an imminent threat to the
public health, the environment, or property, and required immediate action by the Health Services
Department, the staff was able to learn the "initiating cause" -- the condition or failure that
immediately led to the incident. Examples include "leak in tank," "tube rupture," and "operating
equipment malfunction."
Much more valuable in preventing similar incidents is an analysis of the "root cause" of an incident
-- the prime reasons, such as failures of some management systems, that allow faulty design,
inadequate training, or improper changes which lead to an unsafe act or condition that results in an
incident. The root cause is that cause without which the incident could not have occurred. Root
cause information can lead to changes that could prevent recurrence of similar incidents and also
provide insight into general organization culture issues. Depending on the root cause of an incident,
the results of the investigation can provide essential information to similar facilities.
Because not all cases may involve an offence over which the County has jurisdiction to investigate.,
statutory language should be added explicitly allowing investigation of incidents involving hazardous
materials and hazardous waste. Recent events have shown that absent such authority, the County's
ability to gather information to protect the public health can readily be thwarted.
. D,3,4
LOCAL HEALTH DEPARTMENTS § 101085
Pt_ 3
the local health emergency is terminated. the need for continuing the local
health emergency and shall proclaim the termination of the local health
emergency at the earliest possible date that conditions warrant the termination.
(Added by Stats.1995, c. 415 (S.B.1360). § 3.)
Historical and Statutory Motes
Derivation: Former § 471,1 added by Stats.
1980, c. 927, § 2, amended by Stats.1990. c.
1614,§ l: Gov.Rcorg.Plan No. I of 1991,§ 92.
Law Review Commentaries
Revicw of selected 1990 California legislation.
22 Pac.L.J. 616(1991).
Library References
Health and Environment a29. C.J.S. Health and Environment §§ 91 to 113.
WESTIAW Topic No. 199. 126 to 155.
§ 10108$. Health emergencies; powers of health officials
(a) After the declaration of a health emergency or a county health emergency
pursuant to Section 101080, the director or local health officer may do any or
all of the following:
(1) Require any person or organization that the director or local health
officer shall specify to furnish any information known relating to the properties.
reactions, and identity of the material that has been released, spilled, or
escaped. The director or local health officer may require information to be
furnished, under penalty of perjury, by the person, company, corporation, or
other organization that had custody of the material, and, if the material is being
transferred or transported, by any person, company, corporation, or organiza-
tion that caused the material to be transferred or transported. This informa-
tion shall be furnished to the director or local health officer upon request in
sufficient detail, as determined by the director or local health officer. as
required to take any action necessary to abate the health emergency or county
health emergency or protect the health of persons in the county, or any area
thereof, wlio are, or may be affected. However, the burden, including costs, of
furnishing the information shall bear a reasonable relationship to the need for
the information and the benefits to be obtained therefrom.
(2) Provide the information, or any necessary portions thereof, or any other
necessary information available to the director or local health officer to state or
local agencies responding to the health emergency or county health emergency
or to medical and other professional personnel treating victims of the local
health emergency.
(3) Sample, analyze, or otherwise determine the identifying and other techni-
cal information relating to the health emergency or county health emergency as
necessary to respond to or abate the county health emergency and protect the
public health.
(b) This section does not limit or abridge any of the powers or duties granted
to the State Water Resources Control Board and to each regional water quality
737
§ 101085 ADMINISTRATION OF PUBLIC HEAL711
Div, 101
control board by Division 7 (commencing with Section 13000) of the Water
Code. This section also does not limit or abridge the powers or duties granted
to the State Air Resources Board or to any air pollution control district by
Division 26 (commencing with Section 39000).
This section does not limit or abridge any of the powers or duties granted to
the Director of Food and Agriculture or to any county agricultural commission-
er by Division 6 (commencing-with Section 11401) or by Division 7 (commenc-
ing with Section 12 50 1) of the Food and Agricultural Code.
(Added by Stats.1995. c. 415 (S.B.1360). § 3.)
Historical and Statutory Notes
Derivation: Formcr § 472, added by Stan.
1980, e. 927, § 2. amended by Gov.Rcorg.Pl:ui
No.1 of 1991.§ 93.
I
101090. Availability of information that might disclose trade secrets or
secret processes
When requested by the person furnishing the information furnished pursuant
to Section 101085, the portions of the information that might disclose trade
secrets or secret processes shall not be made available for inspection by the
public, but shall be made available to governmental agencies for use in
abatement of the health emergency or county health emergency and in judicial
review or enforcement proceedings involving the person furnishing the infor-
marion.
(Added by Stats.095. c. 415 (S.B.1360), § 3.)
Historical and Statutory Notes
Derivation: Former § 473, added by Stats.
1930,c.'927,§ 2.
Library References
Records 459.
WESTIAW Topic No. 326.
C.J.S. Records§ 106.
§ 101095. Failure, refusal to furnish, or falsification of required informa-
tion; penalties
Any person failing or refusing to furnish technical, toxicological, or other
information required pursuant to Section 101085, or falsifying any information
provided therein is guilty of a misdemeanor and is also subject to any other
criminal or civil penalties provided by statute.
(Added by Stats.1995, c. 415 (S.B.1360). § 3.)
Historical and Statutory Notes
Derivation: Former § 474. added by Stats,
1980.c.927,§ 2.
738
i
i
i itie S
- Article 9
SUBPEI�IAS
Section
25170. Board investigations; production of records.
25171. Committee hearings; powers of chairman.
25172. Service of subpena; return.
25173. Punishment for failure to obey subpena.
25174. Attachment for failure to obey subpena.
25175. Procedure on attachment; penalties.
25176. Expenses of witnesses.
Article 9 was added by Stats.1947, c. 424, p. 1111, § 1.
Cross References
Subpenas, generally, see Code of Civil Procedure § 1985 et seq.
Service in administrative adjudication, see § 11510.
Library References
Counties 0-47, 48. C.J.S. Counties § 81 et seq.
Witnesses 0-7 to 15. C.J.S. Witnesses § 13 et seq.
§ 25170. Board investigations; production of records
Whenever the board of supervisors deems it necessary or important to
examine any person as a witness upon any subject or matter within the
jurisdiction of the board, or to examine any officer of the county in relation
to the discharge of his official duties as to the receipt or disposition by him of
any money, or concerning the possession or disbursement by him of any
property belonging to the county, or to use, inspect, or examine any books,
account, voucher, or document in the possession or under the control of the
person or officer relating to the affairs or interests of the county, the
chairman of the board shall issue a subpena, in proper form, commanding the
person or officer to appear before it, at a time and place therein specified, to
be examined as a witness. The subpena may require the person or officer to
produce all books, papers, and documents in his possession or under his
control, relating to the affairs or interests of the county.
(Added by Stats.1947, c. 424, p. 1111, § 1.)
Historical Note
Derivation: Po1.C. § 4065, added by Stats.
1907, c. 282, p. 376, § 1.
Forms
See West's California Code Forms, Government.
Cross References
Administrative adjudication and proceedings, see § 11500 et seq.
WESTLAW Electronic Research
See WESTLAW Electronic Research Guide following the Preface.
322
d.3B
TO: r BOARD OF SUPERVISORS `�_se_ec,_of
SUPERVISOR JIM ROGERS ` . _ . Contra
FROM: .I�� �� ,• Costa
;<
April 17, 1997 ;
County
DATE: °osT. ;�t
ABILITY OF THE BOARD OF SUPERVISORS TO SUBPOENA OYEES
SUBJECT: OF TOSCO
SPECIFIC RECCSsI�IIDMEMP� (s)&BACKGROUND AND JUSTIFICATION
DECLARE the intent of the Board of Supervisors to subpoena Tosco employees to
testify in public session concerning the issues which the County Health Officer has
been refused testimony on by Tosco; alternately, if subpoena power is not legally
appropriate, DIRECT staff to present other options for the Board's consideration.
BACKGROUND:
Dr. Walker has proposed that the Board sponsor legislation to ensure that the Health
Services Department'will be able to interview witnesses to future refinery accidents.
I have been informed that the Board has the authority to issue subpoenas to compel
such testimony in public session.
This would avoid the Board relying on getting legislation passed, which is chancy at
best. Also, even in the unlikely event that legislation is passed, it would presumably
not be retroactive to cover the Tosco accident (or any other accidents that occur
before the legislation becomes effective).
Accordingly, I am requesting that the Board declare its intent to issue subpoenas, if
that is legally appropriate.
If it isn't, then I am asking the Board to ask staff to present us with other possible
alternatives that would give Dr. Walker the tools needed to complete a thorough
investigation.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD=MMITTEE
APPROVE OTHER
SIGNATURE(S): JIM Rl1fzE13S
ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER X _
See addendum for list of speakers and Board of Supervisor's action.
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS(ABSENT AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
CcApril 22, 1997
County Administrator ATTESTED
District Attorney PHIL BATCHELOR,CLERK OF THE BOARD OF
County Counsel SUPERVISORS AND COUNTY ADMINISTRATOR
Health Services Director (I
M382 (10/88) BY J ,DEPUTY
ADDENDUM ITEM D. 3B
APRIL 22 , 1997
On this date, the Board of Supervisors considered the matter
of the Board of Supervisors declaring intent to subpoena Tosco
employees to testify in public session concerning the issues
which the County Health Officer has been refused testimony on by
Tosco, and directing staff to present other options for the
Board' s consideration.
Phil Batchelor, County Administrator, Victor Westman, County
Counsel, and Dr. William Walker, Health Services Officer,
presented staff comments on the issue .
Supervisor Rogers expressed his frustration in trying to
talk to people at Tosco. The Board discussed the matter.
The following persons presented testimony:
Donald R. Brown, 1801 Sonoma Boulevard #117, Vallejo;
Denny Larsen, 500 Howard Street #506, San Francisco,
representing Citizens for Better Environment;
Clark Wrigley, representing Tosco.
All persons desiring to speak having been heard, the Board
discussed the matter and took the following action:
DECLARED INTENT of the Board of Supervisors to subpoena
refinery and chemical plant employees concerning questions
relating to the root cause of refinery and chemical plant
accidents when the County Health Officer has been refused such
testimony;
DIRECTED staff to present other options for the Board' s
consideration regarding testimony that can be presented. directly
to the County Health Officer and staff in private in order to
provide the best possible environment for full disclosure; and
DIRECTED staff to provide a report to the Board of
Supervisors within 30 days on the progress of a broader approach
on the issue .
h
RICHARD F HALLFORD
4 Manager
' March 6, 1997 Environmental,Health&Safety
Community Relations
' Tosco Refining and
Marketing Company
T®��`� A Division of Tosco Corporation
■ Avon Refinery
Martinez.California 94553-1497
Hand Delivered Wephche:510372.3106
Facsimill. 510 372.3021
Ms. Carla Fritz
State of California
Department of Industrial Relations
Division of Occupational Safety and Health
1465 Enea Circle, Building E, Suite 900
Concord, CA 94520-5211
Re: Letter of Februagy 20, 1997
Dear Ms. Fritz: `
This is in response to your tetter dated February 20, 1997,'asking.Tosco to permit
representatives of USEPA and the Contra Costa County Office of Health Services to
participate in future CaVOSHA interviews of Tosco employees, as part of the investigation
into the January 21 Hydrocracker incident at the Avon Refinery.
Tosco strongly desires to maintain a cooperative relationship with all concerned
agencies, to conduct a thorough, competent investigation, and to determine the cause of
the incident as soon as possible. To accomplish these goals, a method and protocol for
the investigation have been and agreed upon by all agencies. As you know,
we have been proceeding under that protocol for more than a month.
Pur>uant to this protocotr,Ca!lO HA f�as^been acting as.the lead-agency, and_al!
requests fc w inf m tion by other agencies-have.been channeled to Tosco through"�`` .4.
rs ¢ _ . . �.._._.
CailOSHA,. In its capacity as lead agency, Cal/OSHA has conducted exhaustive
interviews of numerous Tosco employees as well as contractor employees who might
have information bearing on the investigation. We understand that Cal/OSHA invited
USEPA and the County to submit questions prior to the interviews, that many of those
questions %vere asked during the interviews, and that Cal/OSHA gave extensive briefings
to the other agencies on the substance of the interviews after they were completed. In
addition, through Cal/OSHA, each of the agencies has requested, and Tosco has
produced, many thousands of pages of documents related to the investigation. We have
even rented trailer space to provide accommodation for the numerous agency
representatives wishing to review documents at our facility. We have also arranged for
several sitE� tours and lengthy briefings for all agency representatives, conducted by Tosco
personnel knowledgeable about issues related to the investigation. In short, we have
gone to a great deal of effort to accommodate the demands of all concerned agencies
within a protocol which recognizes Cal/OSHA's authority to direct the scope and manner
of the investigation.
0
r P9ge 2
Letter of February 20, 1997
March 6, 1997
This protocol has been working well for over a month and the investigation Is almst
complete. Changing protocols now would only result in needless delay, confusion and'an
unnecessary duplication of time and effort. Even more important, we believe that re-
interviews of our employees, as the County has requested, would subject those
employees to a great deal of unnecessary stress and emotional turmoil, at an extremely
difficult time in their lives, as they continue to deal with the loss of a colleague and friend.
Finally, there is a well-established legal procedure governing such investigations,
and we believe the existing protocol is both appropriate.and adequate to meet those legal
requirements. Under Labor Code section 6314, CaVOSHA is the only agency authorized
to conduce: interviews and take other steps necessary to investigate issues of industrial .
safety. CaVOSHA investigators are well-trained and experienced in this regard-.---Tosco
has complete confidence in Cal/OSHA's ability to complete this investigation in a thorough
and technically competent manner. We therefore believe there is nothing to be gained,
and a great deal to-be lost, by changing the protocol so as to allow the County and
USEPA to "re-investigate" the incident, or to conduct independent investigations beyond
their areas of jurisdiction and outside the bounds of any existing law or regulation.
After careful consideration, therefore, we have concluded that we must decline your
request to allow representatives of the County and USEPA to participate in interviews of
Tosco per;,onnel. We believe that the protocol currently in place will best serve our
common goals of completing the investigation in a thorough and competent manner,
determinini3 the cause of the incident and taking steps to insure that it does not happen
again.
If you have any questions or wish to discuss this matter further, please do not
hesitate to contact me at (510) 362-3106.
Very truly yours,
4'� 9
Richard F. Hallford
RFH/EW/c
cc: Mr. Dick Roberts
Cal/O:iHA
Mr. Lewis G. Pascalli, Jr.
Contra Costra County Health Services Department
4333 Pacheco Boulevard
Martinez, CA 94553