Wednesday, August 21, 2013

Chemical Safety and Security EO – Information Sharing

This is part of a continuing series of blog posts discussing President Obama’s recently signed executive order on “Improving Chemical Facility Safety and Security”. The other posts in the series are:

In this post I would like to look at the voluntary nature of compliance with the three main chemical safety and security regulations; CFATS (DHS), RMP (EPA), and PSM (OSHA). One of the complaints that came out of the West Fertilizer incident was that DHS was not aware of the existence of the West Fertilizer facility and that somehow this contributed to that particular disaster.


None of the three main programs that address chemical safety and security are voluntary. All three have clearly defined rules based upon separate (but similar) lists of chemicals that require facilities to take clearly specified actions. What has given the media appearance of these being voluntary programs is the fact that facilities are required to identify themselves as being covered under the requirements of the program.

For example the CFATS program requires that facilities having in inventory any of the 300+ DHS chemicals of interest (COI) listed in Appendix A to 6 CFR Part 27 at or above the screening threshold quantity to file a Top Screen report with the Infrastructure Security Compliance Division (ISCD) of DHS via the on-line Chemical Security Assessment Tool (CSAT).

Over 30,000 chemical facilities (as very broadly defined under the CFATS regulations) have filed Top Screens due to their possessing COI. ISCD reviewed each of those submissions and determined that the vast majority of the facilities were not at high-risk of terrorist attack. DHS will not share the specifics of that analysis process, but it is clear that many (if not most) of those determined not to be at risk (and thus not covered by the remaining CFATS requirements) were based upon their location; generally speaking rural or remote locations do not make for high-risk terrorist targets.

Directed Submissions

Beyond the self-identification process, there are provisions in the CFATS regulations {§27.200(b)(1)} for DHS to direct facilities, either individually by letter or by classification via the Federal Register, to complete a Top Screen submission. And there is nothing in the CFATS regulations that requires those directed submissions to be reviewed in the same manner as the self-identified submissions. The CFATS authorization language found in §550 of the 2007 DHS Appropriations bill makes it clear that the Secretary of DHS has sole discretionary authority to decide what facility is determined to be at high-risk of a terrorist attack.

Information Sharing

The question is how would the Department go about identifying the facilities that it would direct to submit a Top Screen? One way that has been suggested is for the various agencies of the Federal government to share the information that they have in the separate programs to aid in the identification of all of the facilities that might be covered. This suggestion has been formalized in §5(a) of the Executive Order.

“Within 90 days of the date of this order, the Working Group shall develop an analysis, including recommendations, on the potential to improve information collection by and sharing between agencies to help identify chemical facilities which may not have provided all required information or may be non-compliant with Federal requirements to ensure chemical facility safety. This analysis should consider ongoing data-sharing efforts, other federally collected information, and chemical facility reporting among agencies (including information shared with State, local, and tribal governments).”

Director Wulf in recent testimony before Congress has reported on various efforts to compare facility information with data compiled by other federal programs. The most effective matching effort to-date compared data between the RMP facility list and the CFATS facility list. The differences between the two data sets and the systems in which the data is being stored required DHS to farm out the list comparison work to Oak Ridge National Laboratory (ORNL). Wulf reported that once an exception list was generated, DHS had to go back and identify which facilities on the list were statutorily exempted from the CFATS program. ISCD has since gone back and contacted the remaining facilities on the list to clarify their CFATS status.

I have heard from a number of sources that the sharing of data with the other chemical safety and security programs operated by various organizations in the federal government will be more difficult. This is due to the wider differences in facility coverage between those programs and the CFATS program, different types of information maintained, and the disparities in the data storage systems. It looks like the expense of establishing the data conversion/analysis process will be prohibitive.

Working Group Analysis

The Chemical Facility Safety and Security Working Group has until November 5th to complete their analysis of the potential for information sharing. The information developed by ORNL and ISCD will go a long way to providing a logical basis for that analysis. This is especially helpful since that time limit includes compiling a report and making recommendations.

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