It’s not all bad news out there. While Washington sucks workers down into an abyss of corporate anarchy, the State of California is showing us that humans can be rational and protective of their fellow beings.
Despite efforts by federal EPA to roll back its Risk Management Program improvements, other Trump administration attacks on worker and environmental protections, and improbability of future worker or community protections under this administration, the state of California has just issued “the most protective regulation in the nation for the safety and health of refinery workers and surrounding communities,” according to Christine Baker, director of the California Department of Industrial Relations.
And it is.
The main theme of the new CalOSHA standard is that instead of requiring practices that control risks, the standard now requires practices that substantially reduce risks or prevent risks from arising in the first place. California has 19 oil refineries, most of which are located in the San Francisco Bay area or in Southern California.
I grew up in Southern California and often drove through the shadows of petroleum refineries. They seemed like friendlier places in those days. We took Boy Scout field trips through the refineries. One refinery painted its oval tanks orange to look like pumpkins around Halloween, and painted the round tanks to look like baseballs whenever the Dodgers made it into the playoffs.
The benign image of refineries changed over the years as we witnessed more and more incidents that killed workers and threatened communities. Two years ago, an explosion ripped through an ExxonMobil refinery in Torrance — the same refinery I visited in the Boy Scouts. While the explosion “only” injured four contract employees, started two small fires, caused multiple” leaks of flammable liquids, and showered industrial fallout on nearby residential neighborhoods, it also came close to developing into a catastrophe of historical proportions. An 80,000 pound chunk of the electrostatic precipitator flew 12 stories up before crashing three feet from a tank containing 50,000 pounds of hydrofluoric acid (HF), a highly toxic and volatile material and one of the most hazardous chemicals used in refineries. HF, if released, can form a vapor cloud that can cause organ failure and death in humans at extremely low levels
California’s current effort to improve its Process Safety Management standard started after a massive 2012 fire at the Chevron refinery in Richmond, California. Nineteen workers at the refinery narrowly escaped death after fleeing from a vapor cloud that exploded moments after they escaped. An estimated 15,000 local residents sought medical attention after inhaling smoke and toxic fire gases.
The new CalOSHA rules mandate a number of measures that are far more protective than OSHA’s current Process Safety Management standard, and more protective than EPA’s revised Risk Management Program regulation that the Trump administration is trying to roll back. Among the highlights, the new standard would require refineries to
- Conduct a hierarchy of hazard controls analysis to encourage refinery management to implement the most effective safety measures. Measures would be analyzed and documented in priority order, with the most preferred measure being first order inherent safety measures (eliminating a hazard) , followed by second order inherent safety measures (changing a process to minimize a hazard), passive safeguards (like a diked wall around a storage tank of flammable liquids), active safeguards (like controls, alarms or systems to shut off pumps) and procedural safeguards (like policies, operating procedures, training).
- Provide for full worker participation in all PSM elements. There are also processes for non-union workers to choose representatives to participate in the program.
- Consider human factors such as the effects of fatigue, staffing levels, the effects of shift work, complexity of tasks, the human-machine interface and the experience and expertise of employees.
- Consider management of organizational change. Operators have traditionally been required to analyze and manage changes in equipment, processes and chemicals. California now requires refineries to analyze the effects of reducing staffing levels, reducing classification levels of employees, changing shift duration, or significantly increasing employee responsibilities
- Conduct a root cause analysis when investigating any incident that results in, or could have reasonably resulted in, a major incident. A root cause analysis goes beyond just looking at the immediate cause of an incident, such as the over-filling of a vessel, to discover all of the reasons why those events occurred.
- Conduct Damage Mechanism Reviews for processes that result in equipment or material degradation. Physical degradation, such as corrosion and mechanical wear, are common technical causes of serious process failures.
Nothing is Easy
The process of developing these new rules is never easy and this was no exception. Disasters (or even near disasters) like the Chevron fire can open the door to reform, but it still takes a long, concerted and coordinated effort by advocates to realize that reform. California, with its powerful petrochemical lobby and a rather mercurial, if progressive governor, was no exception. Garrett Brown, who was Special Assistant to the Chief of the CalOSHA before retiring in 2014, walks us through the organizing by unions and environmental activists, and the difficult negotiations that went into the final version of this product:
The saga of the efforts in California to strengthen refinery safety to protect refinery workers, surrounding communities and the environment is an example of the power of coalitions between allies, of “doing your homework” in analyzing regulatory proposals, and of publicity, political hardball, and building community support. It stands out as a success against a very powerful industry with sympathetic politicians and their appointed agency heads ever eager to please. It is an example that could be followed to protect against health and safety hazards elsewhere in the United States.
And indeed, there was serious opposition. The Western States Petroleum Association, the oil industry’s main lobbying organization in Sacramento, called the new package of rules an overreach by the state government and an unnecessary burden on refineries. “This is another case of agencies writing new regulations because they think it’s a good idea and working out the details later, without regard to the impact on our business economy or workforce,” said association President Catherine Reheis-Boyd.
Unions representing workers at California refineries were supportive:
Mike Smith, a former Chevron operator now with a union representing East Bay refinery workers, said the rule makes refineries safer by giving employees a greater role and voice in making safety decisions.
“This rule is a huge deal in advancing refinery safety, and preventing catastrophic accidents,” said Smith of the United Steelworkers Local 5.
Smith said he believes the safety measures will save oil refineries in the long run by avoiding the steep cost of catastrophic accidents that cripple plants and disrupt gasoline production.
And a RAND analysis of the costs and benefits of California’s PSM revision confirmed Smith’s belief that the standard will save money. Rand concluded that maintaining compliance with the revised regulation would cost refineries $58 million to implement, and would mean a gas price increase for California drivers of a whopping $0.004 per gallon. And in addition to saving lives, each major refinery incident avoided would save a refinery about $220 million, not including the potential costs associated with damage to surrounding communities or worker fatalities and injuries.
Rand also noted benefits for consumers, pointing out that the first six months following the ExxonMobil Torrance Refinery explosion cost California drivers nearly $2.4 billion in the form of a$0.40 per gallon increase in gasoline prices. The disrupted fuel supply associated with this incident reduced the size of the California economy by $6.9 billion in the first six months.
The World Outside California
Meanwhile, back in the real (aka “Trump”) world, we have written about the Trump administration’s proposal to eliminate the Chemical Safety Board, and EPA’s administrator Scott Pruitt’s actions to delay and reconsider the modernized Risk Management Program requirements issued by EPA in the waning days of the Obama administration. California’s rules go much farther than EPA’s in the area of inherently safer processes, as well as in consideration of human factors and organizational management of change. Both regulations require root cause analysis of incident. EPA, which has authority over the safety of outside communities, focuses much more attention on emergency response activities and provision of information to community emergency responders. And currently, California’s standard only applies to refineries, not all chemical facilities covered under the old Process Safety Management standard.
Meanwhile, federal OSHA is in the early stages of revising its 25 year old Process Safety Management program standard. Under normal circumstances, CalOSHA’s standard would serve as an important model for a future OSHA standard; indeed if California’s program is successful, it could go a long way toward satisfying OSHA’s requirement that its standard be technologically and economically feasible.
Of course, it’s unclear at this point what the future holds for any new OSHA standard, much less one that is guaranteed to generate significant industry opposition. With Trump’s requirement that two worker protections be removed for every one that is added, it is unlikely that any new OSHA PSM standard will see the light of day in the near future.
The “good” news, however, is that even under the best of circumstances, an OSHA PSM standard would be unlikely to be finalized within the next several years, leaving the ultimate outcome to the next (hopefully better) administration.
Trump or any future President would do well to listen to the words of Mike Wilson of the Blue-Green Alliance:
“The bottom line is that California understands how strong public safety and health protections go hand-in-hand with a strong economy,” said Mike Wilson, Director of Occupational and Environmental Health at the BlueGreen Alliance. “This regulation will make a real difference for tens of thousands of California workers and residents, and we commend Director Baker’s team and the Governor for their hard work in getting it across the finish line. California has produced a powerful new regulatory model that resets the bar for industrial safety, here and across the country.”