Sunday, October 18, 2009
Reader Reply 10-18-09 IST Changes
A continuing conversation on the recent IST changes made by Chairman Markey of the Energy and Environment Subcommittee in their markup hearing last week. Earlier posts in this conversation can be found at: HR 2868 IST Changed Reader Comment 10-16-09 IST Changes Reader Reply – 10-17-09 IST Changes Anonymous replied to the last posting, stating that: “Actually, materials circulated prior to the markup stated that the number of facilities covered BEFORE the change was made was 659. After the change, the number was reduced to 107.” If those numbers came directly (or reliably indirectly) from DHS, then we can proceed with a reasonable discussion of the issue. If DHS was not the source, there would be no one with reasonably complete information to produce reliable numbers. Individual facilities are not supposed to share that information, but I would suspect that they would report general Tier level assignments to the primary industry association that they would belong to, but no single organization represents more than a fraction of the covered facilities. Since I know that DHS ISCD has been working closely with the Committee staff on reworking HR 2868, I would assume that the numbers came from them and are thus reliable. The difference between the 659 number provided to the Committee and my 873 number is simply due to changes in facility status caused by downsizing, closings, and changes in chemicals and processes (yes industry does do voluntary IST where it is practical). Sue Armstrong alluded to this decrease in number of covered facilities and changes in tier rankings when she testified before the subcommittee on October 1st. Now, there is absolutely no way that DHS has ranked 552 Theft/Diversion facilities in Tier 1 and Tier 2, especially if there were only 650 facilities to start with. What I am forced to conclude is that most of the facilities removed from the Tier 1 and Tier 2 listing of facilities were facilities with Release Flammable and Release Explosive chemicals of interest (COI), this would leave 107 facilities that had significant amounts of Release Toxic COI that could possibly be required to implement IST changes to their operations. The only problem is that I see absolutely nothing in the wording of §2111(b)(1)(A) that would allow DHS to distinguish between Release Toxic COI and Release Flammable or Release Explosive COI. The wording of that section describes the facilities to which the authority to require IST implementation applies as being those Tier 1 and Tier 2 facilities that are assigned to that tier ranking “because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility”. If the wording of that statement had been restricted to ‘human health, public health or the environment’, one could make the argument that it would only apply to toxic materials. But including the terms ‘critical infrastructure’, ‘homeland security’, and ‘the national economy’ certainly seems to me to include flammable and explosive COI. The only other way around this dilemma would be to change the description of the category for Flammable and Explosive COI to something other than ‘Release’. It did always seem to me to that the term ‘Release’ with respect to Flammable and Explosive COI did not adequately describe the danger associated with these chemicals. It would not be sufficient with these chemicals to simply release them from their containment for it to be a successful terrorist attack. Conditions would have to be established to ensure their ignition under appropriate circumstances to result in a catastrophic explosion for the maximum effect of these chemicals to be felt. Release Toxic chemicals, on the other hand simply need to be released into the environment to do their nasty work. Unfortunately, there is nothing in the published record that indicates that DHS will be changing the categorization of flammable and explosive COI as release chemicals. So we can only read the written record and apply our judgments to that information. Based upon the written record, I stand by my opinion stated in my reply to the original comment by Anonymous; that the ‘concession’ on the types of facilities covered by the IST implementation rule under §2111(b)(1)(A) of the marked up version of HR 2868 is actually a nearly inconsequential change to that regulation, affecting to few facilities to be of any major impact.