Roundtable Meeting — June 2-3, 1999

Tape 3: 6-2-99

Dr. Mannan: This question is not so much to Jon Averback, but basically a question to all of you here. My personal feeling is that the regulatory process in this country has been more reactive than proactive. Given that background, I would like to pose a two-part question to the group here. One, do regulations do any good in terms of accomplishing the objective, which is to improve safety? And two, is the rule making process, the one that we have in place now, that Jon described about the RMP, is that the best process we have, or how can we tweak that?

Tim Gablehouse: The answer, I think, to your second question is no. I think that, I think that command and control regulatory approaches in general set floors. They don’t do a very good job setting goals, nor do they do a very good job in providing incentives to go beyond the floor. The rulemaking process that we practice here, notice and comment for rule making if you will, especially is limited by the Supreme Court decisions, suggest that we do minimal things. You know that we’re going to try to achieve a lowest common denominator. And then, a lot of what I take away today from this conversation is that a lowest common denominator approach is not . . .doesn’t promote, you know, aggressive behavior, doesn’t promote or frankly reward at a very high level folks who want to go beyond the standards. One of the comments was made earlier about the level of training in middle management and their experience and their incentives and their reward structures if you will. That comment was very well taken. If we’re gonna manage on the basis of lowest common denominator, we have to find a better way to reward people who are willing to advance beyond those kind of regulatory floors. Change in this country typically is not driven by government. It’s typically driven from other sources, and that’s where we need to look.

Fred Millar: It seems to me, to be useful to try to focus a little bit on, not necessarily on the overall problem of regulatory versus non-regulatory, but in the specific context. It seems to me, that we might look at why we’re not paying close attention to the worst case scenario data, themselves being a useful measure of the achievement of safety goals. I mean I find that remarkable. I mean I think from the public perspective, looking at worst case scenarios is going to be the major way, the major interface between the regulatory process and the companies and the public, okay. It’s going to be the major shaper of public perceptions as Jim talked about earlier, and so I’m puzzled why there is not more focus on this. I mean, are those things useless or are they useful. You know now, I can recall that . . .I know some of the problems with this of course. In a Cleveland seminar recently, about . . .talking about worst case scenarios and all. One of the industry people got up at the beginning, in the morning and said, "Now listen, " he said, "ya know those people out there in the public, those ‘enviros’, they’re gonna call these things ‘death-zones’", he said, "but, we gotta make sure we don’t call them ‘death-zones.’" Well what was important to me was that all the rest of the day, even all the industry people called them "death-zones." Okay, I’m just saying that that points out, sort of, the emotion laden and yet the . . .also the focus of public perception about what we got here with the risk management plan stuff. Now, I talked to Chevron many years ago and said "do ya’ll do any worst case scenarios?" and they took me over to their computer room and said "hey we do thousands and thou . . .we do millions of dollars worth of worst case scenarios. We just did $50, 000 more last week when we ran our computers." Chevron, in their corporate headquarters, was doing millions of dollars worth of worst case scenarios. Now, is that a toy? I mean is that irrational activity that they are doing? Do they just just . . .they do them and they don’t look at them, they don’t make any decisions based on them? I don’t think so. I think they make some decisions based on worst case scenarios. I think they’d like so say "you know what we had a worst case scenario of 17 miles last year and this year we figured out a way to reduce that to 2 miles." I think they make some decisions based on it. Now, I don’t understand why we can’t be talking about that as not only a sensible industry practice, but something that is going to be the major issue in terms of the impact of the risk management plans. I mean, I don’t think that we’re gonna get stuff out of responsible care by the way. I mean, nobody is saying, "why can’t we use the worst case scenarios that we get out of responsible care programs?" Even though individual companies have done this, I don’t think it has been shared broadly with even the better companies in the industry, I don’t think they’re sharing this stuff very broadly. So it seems like it took government to come along and say "we’ve got to make this something that everybody shares, because it has some common assumptions about how you calculate these things and here’s the respectable technique to do that." So, I mean, it just feels to me like there is also other sources of information about this in the world that we are not tapping.

Fred Millar (continued): . . .was specifically brought into the United States after having been looked at in Europe. And you notice people went to Europe, looked at what they were doing over there and brought that back and convinced the Congress we should do something like this. We also put some American spins on it like Right-to-Know and so forth. But I mean the fact is it was based on what many companies were already experiencing in foreign context and living with in foreign context . . . a risk management plan type of a safety case kind of regime as they have in Europe. So, it just seems to me that . . .I think that’d be a shame if we didn’t at least think about "can we get some more information from what’s going on in the European context from OECD and from the more vigorous countries there that are doing risk management kinds of stuff and not only limit ourselves to what we have here in the accident databases that we have in the United States. Which I think everybody should probably admit are really pitiful, really pitiful. We don’t have a strong government, we don’t have the idea that we need a strong government in the United States. So, we have really pitiful accident databases. And, if you look at the validity and the reliability of those databases, anybody looking at that would say "my goodness the under-reporting, the self-reporting it’s all very pitiful." What it indicates is that people don’t take that very seriously, because, you know, what has been said, "anything that gets measured gets managed." I mean, I learned from chemical industry people that anything that is not measured is not important. Anything that is important in this industry gets measured, that’s what I was told. So, if you don’t have measures of worst case scenarios or impact on the public, guess what that means? It means they’re externalizing the cost and they’re not even trying to calculate it here and they’re just putting it up here. So, I mean I don’t know, I think we should focus on "is the main datum that’s gonna be available in communities, even if they manage to keep it off the internet and so forth, the main data in communities is gonna be worst case scenarios. Is that a useful measure of anything or is it something that we can just all try to work around as a troublesome issue?

John Noronha (retired from Eastman Kodak): The response to the two comments from Sam. Yes, there is a benefit from having rules and regulations. I think the most recent rules the EPA risk management program and the OSHA PSM are really quite unique, in fact their people are pro-business and they are a unique change from what we’ve known regulations of the past. The fact that they may not give credit for things beyond the baseline is really up to every industry to adopt based on the old business situation. And for that, I think, they need to compliment it. There are really not too many hard and fast rules, we need some rules but there are not too many hard and fast which really have, at least from Kodak’s perspective, made itself as enduring. Certainly we don’t like certain thing we don’t think there should be required. Thank you.

Pam Kaster: Pam Kaster, Citizens for a Cleaner Environment. I’m not sure if there is an answer to your question. And those of us who are involved in the rule making process for so many years actually kinda wanna drop that from my mind. But the challenge is I hope that special interest groups won’t continue to tweak the rule and weaken it to the point that it loses its major objectives. And as time looks at this rule, and I’m an advocate of the interests of . . .or the concerns of special interests, that if they’re gonna push heavy against this rule and it loses it effective ability to protect the public, then we need to guard against that. I also work a lot on the Toxic Release Inventory Report and am very impressed with the way that has driven change. And, if we can come up with a baseline, and I understand how complicated this is and I have a few ideas but who knows? If we could come up a baseline and at some point show that RMP has indeed driven change then I think that this meeting will be very . . .will have served a very important purpose.

Lee Feldstein: Hi, my name is Lee Feldstein from the National Safety Council. The public disclosure elements of the RMP are real important and they’re . . .they allow certain safety protocols, safety information to be disseminated that perhaps wouldn’t be able to do with a stick and carrot approach or command and control. The key area is that the activity with the RMP has been over public disclosure and at the further weakening of that, or at least the making it available readily has, you know, under cut the availability of that information getting out to communities where things, at least so they can understand what hazards they face. One of the questions I’ve had though about the relationship of the RMP and Process Safety Management, and Jon can help me with this, I’m still not really sure I understand the value of Process Safety or the accident prevention elements that are in the RMP, the summary. What does that tell someone that’s looking at it? I mean the accident history is useful, but what the people have submitted a process hazard analysis. I mean just knowing what that is. . .not being able to have access to it, I mean what does that tell you? A key risk factor in all this is going to be, you know, can someone in the community or in industry determine whether that plant is operating safely and how do you determine that? I guess accident history is one thing, but look at the process, look at the culture and hopefully the RMP would help to clarify that.

Unidentified Male: First I’ll answer Lee’s question, then I wanna take a shot at Sam’s question. One of the things that the RMP reporting on the prevention elements, which correspond to the PSM elements, accomplishes (is that) you can look at, for instance, the dates of each of the activities to see if it’s a sensible pattern. Are people being trained, roughly contemporaneously with new processes coming on line? Or, you know, and I’ll leave it to the industry folks whether . . .my guess is that probably should have some training beforehand and continue to train once we shake down a process. So those states, for instance, will tell you whether the management system is accomplishing properly, you know, the type of training you would want the proper process safety system. The list of very . . .the additional prevention data . . .I haven’t looked at it recently, I know that in the RMP there are. . .you identify particular types of processes that you have, you identify types of controls you have, making sure things are updated frequently. All of those things, I think, tells you something about whether the companies have good risk management practices or good process safety management. As for Sam’s question about taking a step back from the rules and can you really set goals through a rules process? But, we don’t, you know, our goal in writing the rule is not "gee, is this something that", you know . . . The goal is not the rule in itself, the rule shouldn’t be substitute for a goal. A goal is what you hope to accomplish by the rule. You know, in the hierarchy in your paper earlier it would not . . .it would be more operational, good compliance with part 68, active involvement in communities and industries, associations and states in good planning.

Jim Makris: Thanks, I wanna make a couple of comments, some of them stimulated by some things Jon said and one stimulated by what Fred said. It think we have to be very careful that we remember that we’re here because there is a awful lot of contributing factors and organizations to eventually . . .resulting in a safe America for chemical accidents and perhaps a safe world. The OCA, Off-site Consequence Analysis, and the alternate off-site consequence analysis are very important, they might be good measures. Unfortunately, the definition means that if you don’t reduce the amount of chemical, you can never make the gains from 17 to 2 miles as Fred has mentioned. Although, you might create better safety measures within the facility and that might indeed be useful. But, I think if we emphasize too much the gains from OCA or the gains made my OCA reductions, and we fail to pay attention to accident history, near misses, we fail to take proper consideration of process safety management and the management of change, we fail to take consideration of inherently safer chemicals and reduction of inventories and better processes, I think we’re gonna be missing the boat. I don’t know that we should consider anyone of the parts of any of our rules, frankly, any of our standards where there is a NFPA 58 for propane or other standards for other chemicals. I think all of these need to be considered in . . .as we move our safety regimens forward. Having said that, I think we also have to recognize that it is not only the 112r rule, even though the EPA has the responsibility for. The law presumed the existence of lots of standards. Fortunately, CCPS is still doing a huge kind of industry standard setting set of publications. I think we need to recognize what contribution has Bob Perry and CCPS made to chemical safety. Where does that fit into the process? Are they to be given credit? We need to think about what contributions are being made by the industry itself within its responsible care program. Unfortunately, it’s not very transparent yet. Some day it may be more transparent and therefore more acceptable to folks of the environmental community and LEPC members. I think CMA needs to spend a lot more time on transparency. But, we cannot deny that the industrial code specified in responsible care isn’t going in the right direction and isn’t making some contribution. I think part of the debate is, we’re all looking for what is our contribution. And I think what we need to do is look at what our collective contributions are. And, that’s not part of PSM and that’s not part of 112r and is not part of LEPC function, it’s not exclusively the government at federal, state or local level, but indeed includes the wisdom that comes from Bob Perry and his 100’s of AIChE scientists. Comes from the intellect of CMA and the Chlorine Institute or the American Petroleum Institute and further and ultimately comes from our ability to convey to a public at large that we’re all working on this one together and that each part has its place.

John Noronha: John Noronha, consultant. I’d like to add what Jon Averback responded to Lee’s comment because this is what I consider what I’m going to discuss in benchmarking. Part of the thing that the Team is reporting, is the benchmarking proposal, is to filter all this data, which is a mass information, and to get something that is particularly determined to get trends, as Jon has brought up. So if we get trends of programs, if you want to enhance, reduce or even eliminate based on this data. One way to do it is by filtering this information and get general normalized measures, which can be both qualitative or quantitative, and those trends are gonna help us from a business type basis to go on national safety goals.

Delilah Barton: Delilah Barton, Chemical Process Safety report. Actually, just to answer your question directly, as a writer I look at everything with face-value and I look at the realism, pessimism, whatever you want to call it and the need for regulation is definitely there. Because, I think for the . . .as an ideal issue I’d like to think "yes, every company is out there to give John Smith a great job in Process Safety" but in reality companies are there to make money. And, I personally question how the facilities out there would actually go through the process of mechanical integrity and all the documentation that goes along with PSM if they were not required to do so. So regulation is required. But, I think that also for it to be a goal and to go beyond regulation because, you know, OSHA does not have a lot of teeth. I mean, EPA can, you now, fine you out of business, OSHA doesn’t have that capability and there isn’t a lot of dis-incentive to not comply. So, to go beyond that there has to be a goal of . . .profit. There has to be, you know, whether PSM and RMP actually goes back to the productivity. And, I think if you’re gonna go beyond regulations you have to look at that aspect, because that is what business is about. It’s about money, it’s about producing and it’s not about, you know, the employee having a good job. And, as for the regulatory process . . .living in D.C., and after seeing it happen day after day after day, everything goes at a snail's pace. I mean, OSHA has yet had the opportunity to address reactive chemicals. It’s been, you know, three years, four years, I mean, it’s a cumbersome process. But, as for addressing it in this type of meeting, I mean, there’s really not much you can do, it’s up to Congress at this point.

Dave Willette: I was in the Marriott Hotel in Crystal City when the first attempt at the PSM standard was written down on a black board, and I remember it was John Rivard from Shell, I think, who identified the concept and it was very simple. He said "how ‘bout if we have regulation which was congruent with good operating practice" and I think one of the roles that we can play here is to help, I know CCPS is doing exactly this, is to identify what is good operating practice. And, if we could have a library of "what is good operating practice" then that gives management, who may not know what good operating practice is, the ability to screen what they’re doing and compare it with what they should be doing and then move in the proper direction.

Bob Barrish: My name is Bob Barrish, from the state of Delaware. And, I’d like to weigh in on several issues actually. Some of them that were addressed in this most recent session but also some that . . .some carry-overs from this morning’s session. My perspective on this is one of . . .comes from the fact that I spent quite a bit of time working with the regulated community. And, I look around the room here and I heard some discussions and I realize that the regulated community represented here, the chemical business, oil people it’s the cream of the crop. And with respect to the number of facilities regulated either under 112r or PSM, depending on anybody’s estimates, range from 10 to 25% of the regulating community. So, we’re talking about at least 75% of the regulated community not being represented here, and believe me they are not nearly as knowledgeable about these as the people here. The 75% that are not represented here essentially don’t have any kind of a corporate culture, don’t understand management systems, and we were talking about near misses earlier in this session. I was talking to somebody out here during the break and some of these people . . .I’ll give you an example. Somebody using anhydrous ammonia as a refrigerant has a release of 2000lb. The cloud of anhydrous ammonia goes between two houses across the street, they say "My God, that was a near miss." Really, you know, so what we’re talking about these things . . .we have to understand that there’s quite a group of people out there that many of you have. Makes putting together incident databases very difficult, ‘cuz certainly if you incorporate near misses. I think Irv earlier this morning alluded to, or asked a question "Would educational facilities that cater to small business be appropriate?" Certainly, but again the majority, the 75%, don’t understand they need it. You know, we have to, you know, get out and educate that group. So, some more recent comments that were made, you know, are rules and regulations needed? You know I’m a regulator. I helped put the rules and regulations together, yes we do. Again, the volunteering methods just don’t seem to work. We’ve done a tremendous amount of work with the propane industry and built some guidance on propane compliance for 112r around things propane people already said they were doing. And, we said, "that’s fine, just do it." And, you know find in many many cases that is not the situation, but do we need rules? Yes. Somebody talked about seat belts and how successful that’s been. Yes, but there’s also a penalty for not wearing seat belts. You know, how much of a drivers Ed. If you‘re pulled over to the side and don’t have your seat belts, $100 fine. Is that more of a driver than the fact that you realize something bad could happen if you’re in an accident and don’t have your seat belt on. You know, I’m not sure. Has the publication of the RMP been . . .had any effect? Yes, in Delaware it has. We don’t have a whole lot of regulated facilities as most of you know, maybe just a little more than a hundred. But between 5 and 7 or 8 of those facilities have made adjustments. They have been part of the Delaware program for 10 years but had made adjustments either in the quantity or in their process once they realized that they wold have to make their off-site consequence . . . made available. Two of them were chlorinators, who changed to sodium hypochloride, a couple of propane people, and one that I’d like to talk about that we can get some factual tool on. A large chlorinator has decided to discontinue the use of bringing in rail cars of chlorine, the rail cars of chlorine was this person's worst case, would’ve had an impact zone of 18 to 20 miles. For a worst case, using the definition is just getting chlorine by pipeline now. The amount of chlorine in the pipeline on site is below the EPA threshold, therefore they do not have to report it. And with respect to process safety management, I’m not sure, but with respect to the 112r they are not regulated, however this company, this company uses a minimum, a minimum of 125 tons of chlorine per day. Should they be regulated? Yes. Are they regulated in Delaware? You bet. But it’s because of the unique nature of our regulation. So, I think Irv talked about in his white paper about technical avoidance, here’s technical avoidance, which could fool you. I guess the only reason I’m making these comments is to make sure we understand that the people around this table really don’t represent the entire regulated community. Thank you.

Jerry Poje, Safety Board: I just wanted to comment and similar to that, some of the incidents that the Safety Board has had to respond to reflect that other kind of community that’s not represented here. Something that is important for us to also learn, is that the world sometimes doesn’t move gradually. It moves by paradigm shifts, the Bhopal incident as the mother to the invention of Title III, Title III and incidents that occurred in the late ‘80s as mother of invention to the 1990 Clean Air Acts, that operates also at the statewide level. And so some of the policies that happen, TCPA in New Jersey, we investigated an incident last year at an explosives manufacturing facility that exploded and killed a number of the work force, destroyed the business. But out of that then came a review at the state level of the performance of the state agencies and how they were trained and competent to inspect facilities that manufactured explosives. I would argue that the issues of rules and regulations are important but they also have multiple dimensions. So, the competency in staffing of regulatory agencies is also part of the system of safety. And if we want to be effective in thinking how to push those letters to improve safety, it becomes very important that we not devolve to a citation that says failure to have a written plan is the only thing an inspector is capable of inspecting upon. Because what that translates to is paperwork pushing as opposed to really thinking about inventing a philosophy of safety at the management of facilities. So, I urge us all to think complexly about that, and that we do have a vested interest in seeing that the agencies that do enforce such regulations that they are skilled, competent, and being trained into an evolving stance of where is a the good practices. Good practices in 1984 I dare say are old practices compared to 1994. 1999 good practices are going to be a step above those that were 5 years ago. That does not evolve in statutes. And the inability of us to understand them I think perpetuates some dangerous situations.

Wayne Bissett: Well as the only foreigner in your midst, maybe I can try to address the questions that Sam asked at the beginning in terms of does rulemaking help achieve national goals and are there better processes. And if I said I came from Ottawa you wouldn’t understand the nuance there but if I came from Washington maybe you would. First of all I should point out that we in Canada either at the federal or provincial level do not have either an OSHA PSM rule or an EPA RMP rule, but we have been watching with intent interest as these rules have progressed in the development and implementations. And to explain a little bit why, and the fact that we have a different process should go back right to the Bhopal incident. Immediately after the Bhopal incident we formed an industry/government task force at the behest of our Minister of the Environment to examine the situation in Canada trying to answer the question: Can it happen here? And after a year and a half of senior level government/industry involvement in this, the answer was: Yes, it could but the probability was low. We told that to the Minister and the Minister said well then get on with fixing the situation. But we don’t have a driving force as you have in Congress to develop legislation in the same way in our country. It usually comes from government policies that are developed over time and presented to the public. But what we did was create a multi-stake holder group composed of industry people and associations, governments at the federal and provincial level, and groups such as the Fire Chief’s Association and other responder organizations. And we started to embark on really a number of issues that you were addressing in the United States, in terms of what are the most dangerous substances; what are the threshold quantities; where are the sites located; what other tools are available. And you’ve done that through legislative approaches and through approaches such as the CCPS. In the first 10 years that this Major Industrial Accidents Council existed we produced many tools and procedures. List of priority substances and thresholds, risk assessment methods, process safety management guidelines based on Bob Perry’s PSM guidelines, we produced a Canadian standard and we developed guiding principles for improved emergency preparedness at the municipal and industry level, at the community level. But two years ago, in the absence of legislation, the Major Industrial Accidents Council embarked on a new initiative called the partnerships towards safer communities and we recognized that two things had to happen. First, there had to be improvement within the plant facility, through better process safety management. And the second thrust was there had to be improved emergency preparedness at the community level, so that the community managers knew that these sites were located in their facilities. And you managed to do that through a legislative approach, we tried to approach this through a voluntary approach. And I’ll come back to Bob’s comment in a moment because there are shortcomings there. But what we have tried to do in the last two years, or year and a half actually, is identify national goals through MIAC, to obtain some objectives in the next five years. For example in 1998 we had confirmed that there were 512 sites identified as list 1 sites, having quantities of ammonia and chlorine, and we identified 32 substances but they’re at that kind of level. We estimate that there’s about 1700 sites in Canada, and we hope to identify and evaluate all of those in terms of their process safety management involvement or implementation by the year 2003. We also identified and confirmed that there were 316 communities that had at least 1 of these sites in their boundaries, and we think there’s probably about 650 that have to be evaluated. So, the goal is to have all of these sites and communities evaluated at what we call an essential level and there’s criteria for that, by 2003. And they’re looking forward to having so many of them at an enhanced level and so many at what we would call an excellent level. Now, we’ve had some problems with that. I have to say that CCPA, Canadian Chemical Producers Association who started the development of responsible care in 1984, had been on site since the beginning. They’ve been on site since the beginning, they’ve been the leaders within all of the industry sectors. The petroleum sector came on later and the pulp and paper industry came dragging and screaming. I met with some of their executives in 1986 when they were about to provide a report to the Minister, and then company had had one of these near misses in Hinton, Alberta. And the chap said, "Well, the only chlorine puff cloud just missed the community even though the community was on stand-by-alert to be evacuated." And he didn’t seem to understand the seriousness of the issue. So, we have some problems with industry associations. Some of them still aren’t on site, especially Chemical Manufacturers, Propane Gas Association, and the Canadian Paints and Coating Association.