HR 2642 – Chemical Safety and Security Provisions

As I promised last week I would like to take a closer look at the three chemical safety and security provisions included in HR 2642, the Federal Agriculture Reform and Risk Management Act of 2013, that passed in the House. Those provisions are included in the following sections of the bill:

• §6126. Special Authorization for Biosecurity Planning and Response;

• §11319. Sense of Congress Regarding Agriculture Security Programs; and

• §11324. Applicability of Spill Prevention, Control, and Countermeasure Rule.

Biosecurity

This section would amend 7 USC 3351 (the National Agricultural Research, Extension, and Teaching Policy Act of 1977) by adding spending authorizations for the biosecurity planning and response program for 2014 through 2018 at $10 million per year. Section 3351 authorizes the Secretary of Agriculture to use funds support research to “reduce the vulnerability of the United States food and agricultural system to chemical [emphasis added] or biological attack” {§3351(b1)}.

I have not followed this program in any detail since it is primarily a biosecurity program not a chemical security program. The wording of authorization does make clear that chemical attacks on food production and processing are included in the potential forms of attack considered. The most obvious chemicals to be used in an agricultural center would be the chemicals most likely available in the area of the attack, fertilizers and pest control chemicals.

While many of those chemicals are covered under CFATS, DHS has generally not been concerned with those chemicals in rural areas because of the low terrorist threat in those thinly populated areas. If DHS were to consider the use of those chemicals against food stores like grain elevators a real possibility, they may re-look at the risk assessments that they do on Top Screen submissions.

It would be interesting to see someone do a realist threat assessment of the potential use of readily available agricultural chemicals in attacks on agricultural producers and near field temporary food storage. That would seem to be a legitimate use of these funds.

Agricultural Security Programs

Section 11319 is a sense of Congress measure that informs the Secretary of Agriculture that Congress (in the imperial third-person) is concerned about the potential for outsiders (other Federal departments and agencies) could undertake regulatory action to “implement security programs affecting the availability, storage, transportation, and use of a variety of chemicals and products used in agriculture” {§11319(4)} that could “not unnecessarily restrict the availability of the most efficient and beneficial products needed to sustain agriculture in the United States” {§11319(5)}.

Because of the uproar about the West Fertilizer explosion this spring, the most obvious programs referenced by not named would include:

• The Chemical Facility Anti-Terrorism Standards (CFATS);

• The Ammonium Nitrate Security Program (ANSP; under development);

• The General Duty Clause of the Clean Air Act.

The section notes that Congress believes that the Secretary should specify personnel at the “at the Senior Executive Service level or higher” {§11319(6)} who would be responsible for assisting the outside agencies in developing and implementing chemical security rules that would have “minimal adverse impact on agricultural productivity” {§11319(7)(D)}. This would be accomplished by having those officials work with manufacturers, retailers, and the general farm community to:

• Review existing and proposed Federal, State, and international agricultural chemical security regulations {§11319(7)(A)};

• Evaluate how existing and proposed security regulations, including systems to track the sale, transportation, delivery, and use of agricultural products, can be designed to minimize any adverse impact on agricultural productivity {§11319(7)(B)};

• Evaluate how existing and proposed security regulations will affect the ability of agricultural producers to have timely access to nutrients, chemicals, and other products that are affordable and best suited to the producers’ operations {§11319(7)(C)};

• Develop recommendations on best practices, policies, and regulatory mechanisms relating to existing and proposed security programs {§11319(7)(D)}; and

• Engage with Federal agencies with responsibility for establishing security programs to ensure that they have the information needed to develop procedures for effective security administration and enforcement {§11319(7)(E)};

Spill Prevention

Section 11324 would require the Administrator of the US EPA to modify enforcement of the Spill Prevention, Control and Countermeasure Rule (40 CFR 112) though it doesn’t specifically require that rule to be amended. Requiring the modification of the rule would have required a publication of the proposed revised rule with a public comment period. That would delay the implementation of the requirements in this section.

There are two major enforcement areas that would be revised under this section. The first would be the way that self-certification for spill control programs under §112.3(g) would be handled for farms. The second deals with modifications to the calculation of aggregate aboveground storage capacity under §112.1(d)(2)(ii).

Section 11324(a)(1)(B) would essentially add a new definition of facilities that were allowed to self-certify that the SPCC met all program requirements instead of hiring a certified professional engineer to so certify. The self-certification would be authorized when the facility has:

• An aggregate aboveground storage capacity greater than 10,000 gallons but less than 42,000 gallons [current Tier 1 limit is 5,000 gallons]; and

• No history of spills [current Tier II limit is no spills > 1000 gallons], as determined by the Administrator;

Furthermore §11324(a)(2) would fully exempt from the SPCC requirements any facility that has:

• An aggregate aboveground storage capacity of less than or equal to 10,000 gallons; and

• No history of spills, as determined by the Administrator.

Section 11324(b) would exclude the following containers from the calculation of ‘aggregate aboveground storage containers used above:

• All containers on separate parcels that have a capacity that is less than 1,320 gallons [current minimum container size if 55 gal]; and

• All storage containers holding animal feed ingredients approved for use in livestock feed by the Food and Drug Administration [the current rule already exempts pesticide mixing and application equipment as well as milk and milk product containers].

This is clearly another attempt by the agriculture industry to reduce the impact of environmental regulations upon their operations.