Issue Date: February 17, 2014
Regulatory Overhaul Stumbles
Over two weeks in late January, the Chemical Safety & Hazard Investigation Board (CSB) released two controversial and lengthy investigation reports on the causes of a pair of tragic petrochemical accidents. At public hearings near the accident sites, the board presented its reviews of the April 2, 2010, explosion and fire that killed seven workers at the Tesoro refinery in Anacortes, Wash., and the Aug. 6, 2012, accident at the Chevron refinery in Richmond, Calif., which sent smoke high into the atmosphere and drove 15,000 residents to seek aid at area hospitals.
CSB’s reports found fundamental flaws in plant management and government regulatory oversight at the petrochemical facilities. As a result, in the reports, CSB staff and board Chairman Rafael Moure-Eraso urged sweeping changes in U.S. refinery regulations, including the introduction of a regulatory scheme, a “safety case approach,” used in other parts of the world.
The safety case recommendation was first presented at the Chevron hearing for an up-or-down vote by the full board. Despite more than a year’s worth of staff work, the CSB board voted it down. The vote revealed a sharp split among the board’s three members: Moure-Eraso voted for it; the other two balked at Moure-Eraso’s safety case endorsement and sent the scheme back to the CSB staff for further review. It appears that modifications to refinery regulations are unlikely to be quick or easy.
Over a decade, the board has issued a long list of recommended safety improvements for the U.S. refinery industry and its regulators. The recommendations usually followed a particularly deadly and highly visible accident. One of the worst was the 2005 BP Texas City, Texas, refinery tragedy that killed 15 workers and injured 180 others. The board’s BP investigation and report recommendations led to a national program to emphasize refinery safety, run by the Occupational Safety & Health Administration. The effort ended when OSHA ran out of program funding several years ago.
But refinery accidents continue. According to CSB documents, 125 significant accidents occurred at the nation’s 150 refineries in 2012 and six of CSB’s current backlog of 13 investigations are of deadly refinery accidents. Also, the board notes, financial losses by U.S. refineries resulting from accidents are more than three times those of refineries in other countries.
Although board members agree there is a refinery safety problem, they do not agree on how to fix it.
The safety case, recommended by CSB staff and Moure-Eraso, is a performance-based regulatory system where the companies, which should know the most about their own operations, develop their own regulatory requirements. Plant officials present these requirements in a report to a well-trained, well-paid, highly experienced government regulatory inspector who reviews, audits, and enforces the report.
CSB staff compares it to the Nuclear Regulatory Commission’s oversight of nuclear facilities, a labor-intensive operation that requires at least one full-time inspector at each reactor site. CSB’s draft report for Chevron recommended that a pilot project be established in California with an inspector assigned to each of the state’s 15 refineries.
This process is used in the U.K., Norway, and Australia, CSB says. It would replace what CSB calls a patchwork of largely reactive, activity-based U.S. refinery regulations. The methodology, CSB says, would lead to greater application of inherently safer production methods, materials, and technologies.
Use of, or at least a close examination of, inherently safer technology (IST), such as substitution of less hazardous production chemicals, has long been recommended by CSB and other industrial safety engineers. IST is, however, a red flag to industry leaders who say it is difficult and costly to implement and an infringement on their rights to make products as they see fit.
At the Chevron meeting in Richmond on Jan. 15, board members Beth Rosenberg and Mark Griffon rebelled against the safety case recommendation. They noted that Chevron had been warned at least seven times over the past decade that the piping failure that eventually led to the accident was possible, if not likely, and should be corrected. Other short-term remedies, they said at the meeting, would be immediately effective, and it is overkill to overhaul California’s regulatory system using a trial safety case program without more study.
“This was a management failure, and to go from a failure to recognize and correct a corroded pipe to propose a new regulatory regime is a bit of a leap,” Rosenberg tells C&EN. “Our recommendations flow from the evidence, and I am not convinced that this flows. On the other hand, trying something like this in California could be helpful. But I am not there yet.”
Rosenberg and Griffon introduced and passed a motion requiring a reexamination of the safety case and its use in California. The motion also orders CSB to create a multidisciplinary, outside expert panel to examine a host of issues raised by the approach, including community and union involvement as well as transparency when negotiating the safety case. In addition, their motion calls for a revised report from CSB staff within 120 days.
Moure-Eraso terms the vote a “missed opportunity to promote fundamental change in safety management.” He warns that the call for additional study would just continue “kicking the can down the road by delaying changes to the current system, which has failed to prevent catastrophic accidents.”
In addition, Moure-Eraso strongly defends CSB’s internal management system to C&EN, saying that on four occasions before the January Chevron meeting, board members were provided with drafts of the report that included the safety case recommendation and did not object.
However, CSB staff members, he says, are now conducting additional interviews and investigations to comply with the board’s motion passed in Richmond. He adds that CSB is just now selecting members for the outside expert panel but warns that may add years to the already delayed accident review process.
At Richmond, the five-hour-long public hearing also revealed divisions over the safety case recommendation between local elected officials, who supported the change, and national unions and political leaders, who opposed it. Chevron was silent at the hearing, but its advisers and the American Chemistry Council, a chemical industry trade association, voiced opposition to the safety case, saying it is too complex and unnecessary because the current OSHA-enforced regulatory system is adequate.
Two weeks later, on Jan. 29, CSB released its Tesoro accident report and recommendations at a public meeting in Anacortes. The meeting was originally set to formally approve the long-delayed Tesoro report, but on the eve of the meeting, the hearing was changed to a “listening session” as it became likely the report recommendations, which included the safety case, would bring about a repeat of the Richmond vote. So instead of voting, CSB released its draft report then listened and extended the public comments period for 45 more days.
With this extension, four years will have elapsed between the accident and CSB’s report.
CSB’s delays have angered local residents, labor unions, and political leaders. While CSB extends its study, the State of Washington has already issued an accident report and fined Tesoro $2 million. Families of deceased workers have also settled with Tesoro for a reported $39 million.
“The Anacortes community deserves better after four years of waiting and countless delays from CSB,” Rep. Rick Larsen (D-Wash.) wrote in a letter to Moure-Eraso shortly after the listening session was announced. For two years, Larsen, who represents the Anacortes area, has worked with the state’s two senators and several representatives to press CSB to speed up the investigation and issue the report.
In a letter responding to Larsen, Moure-Eraso said the report was in fact complete and it addresses both the Tesoro accident and a “much needed regulatory reform” for the refinery sector. Moure-Eraso apologized for the delay, noting the “less than optimal communication” of the shift to a listening session. He added that the Tesoro review was “a technically difficult, complex, and research-intensive investigation that had been undertaken by a very limited staff.”
In a separate letter to Larsen, CSB board members Rosenberg and Griffon blamed Moure-Eraso and top CSB staff for the shift to a listening session. And although they are the majority on the three-member board, they said they are “embarrassed by the pattern of unmet promises” concerning the Tesoro report’s delay.
Such delays have long plagued the board, and it has frequently faced criticism for issuing reports long after an accident occurs.
CSB has a tremendous backlog and appears to have taken on much more than it can accomplish. Along with Tesoro and Chevron, the board’s 13-accident backlog includes the 2013 West Fertilizer explosion and fire that killed 15 people, the 2010 Macondo-BP oil rig blowout that killed 11 workers and polluted much of the Gulf of Mexico, and the recent West Virginia chemical leak that contaminated the Charleston public water supply (see page 10). All three were requested by members of Congress.
Although Congress appears willing to increase the board’s workload, it is unwilling to increase its $11 million budget, which has remained flat for the past decade, as has its small, 41-person staff. In addition, the five-member board that oversees operations has been short a full complement since 2011. Board members must be appointed by the President and confirmed by the Senate. Two new board members are now pending before the Senate.
However, while complaints of delays rained down, there have been no criticisms of the technical quality of CSB’s investigations and recommendations. In fact, members of Congress and affected communities continue to urge CSB to take on more investigations.
For the Chevron and Tesoro investigations, CSB found the specific causes to be quite similar. Both were related to weakened and corroded carbon steel tubing that should have been recognized and corrected. Also at fault was a deficient refinery management system that allowed potential problems to be ignored.
CSB says in statements and in its report, for both Chevron and Tesoro, the piping would have been replaced through application of IST policy to correct the defective piping and the safety case oversight process would have encouraged an IST examination to be done.
To read more details on Tesoro and Chevron accidents, go to http://cenm.ag/tesch.
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